J-A04021-15

*Retired Senior Judge assigned to the Superior Cour t. NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 ALDIS RUTYNA AND MARY JANE RUTYNA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellants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, appe al 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 & McCl elland, P.C. (hereinafter “the Law Firm”). We vacate the trial court’s order and remand. We previously explained the underlying facts of thi s case. We quote, in part, from our prior factual summary:

On May 18, 2006, [Attorney] Schweers filed a medica l malpractice complaint on behalf of [Appellants, nam ing, as defendants, William P. Donaldson, III, M.D. and the University of Pittsburgh Medical Center – Presbyter ian. The complaint alleged] that Mr. Rutyna was injured as a result of negligence during surgery. After [Attorney] Sch weers didJ-A04021-15

- 2 - 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 t hat complaint, [Appellants] alleged that [Attorney] Sch weers 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 misrepresenta tions to them to conceal his misconduct and to prevent [Appellants] from seeking a different attorney. In their complaint, [Appellants] raised claims of profession al negligence, fraudulent misrepresentation, negligent misrepresentation, breach of fiduciary duty, and br each of contract against [Attorney] Schweers. [Appellants] alleged respondeat superior /vicarious liability and Unfair Trade Practices and Consumer Protection Law violations ag ainst the Law Firm. A certificate of merit for each defe ndant was attached to the complaint. [Attorney Schweers and the Law Firm] filed prelimin ary objections. On January 18, 2011, [Appellants] file d 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 brea ch of fiduciary duty against [Attorney] Schweers, and vio lations of the Unfair Trade Practices and Consumer Protecti on Law against the Law Firm. The order also struck severa l paragraphs from the complaint that alleged that [At torney] Schweers made misrepresentations to [Appellants. T he result of the trial court’s order was that only App ellants’ claims for professional negligence, breach of contr act, and vicarious liability remained pending before the tri al court]. Rutyna v. Schweers , 100 A.3d 325 (Pa. Super. 2014) (unpublished memorandum) at 1-3 (internal footnotes omitted) (in ternal italics added). On September 11, 2012, Attorney Schweers and the La w Firm filed a motion for summary judgment. As the movants claime d, during theJ-A04021-15

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underlying medical malpractice action, Attorney Sch weers sought to obtain an expert medical report from Dr. Lance Perling. H owever, the movants claimed, Dr. Perling “prepared a written report whi ch yielded a negative opinion[; in particular, Dr. Perling concluded] tha t 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 omitt ed). Attorney Schweers and the Law Firm noted that, for Appellants to prevail on their legal malpractice claim, Appellant s 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 t o exercise ordinary skill and knowledge; and (3) [t]hat such negligence was the p roximate 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. Acc ording to the movants, since Attorney Schweers could not obtain a favorable expert opinion from Dr. Perling to support the underlying medical malpractice

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1 Attorney Schweers and the Law Firm attached a copy of Dr. Perling’s letter to their summary judgment motion. Motion for Summa ry Judgment, 9/11/12, at “Exhibit 5.”

2 Within their summary judgment motion, Attorney Sch weers and the Law Firm claimed: “[Attorney Schweers and the Law Firm ] have now obtained two negative expert reviews on the case, one oral a nd one in writing.” Motion for Summary Judgment, 9/11/12, at ¶ 24. How ever, the summary judgment motion did not specify who provided the “o ral” expert review – and there was no documentation to support the state ment regarding an “oral” expert review.J-A04021-15

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action, Attorney Schweers could not file a certific ate of merit in the underlying case. Therefore, the movants claimed, A ppellants are unable to sustain their burden of production in this legal ma lpractice case, as Appellants cannot establish that Attorney Schweers failed to “exercise ordinary skill and knowledge” when he failed to fil e a certificate of merit in the underlying medical malpractice case. Id. at ¶¶ 41-42. Moreover, within the summary judgment motion, Attor ney 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 pie ce of evidence to prove that [Attorney Schweers] did not obtain at least on e medical expert report” and it was speculative to conclude that Attorney Sc hweers should have found “a doctor that was willing to opine that [App ellants’] case had merit.”

Id. at ¶¶ 46-54. Finally, Attorney Schweers and the Law Firm claimed that they were entitled to summary judgment because Appellants ref used to pay for their case to be reviewed by other experts. See id. at ¶¶ 16-17. On December 11, 2012, Appellants filed their respon se to the summary judgment motion. Within their response, Ap pellants: denied the movants’ declaration that Dr. Perling’s review cons tituted a comprehensive, expert review of their claim, as Dr. Perling had re viewed the case before all of Mr. Rutyna’s relevant medical information was co llected; claimed that Attorney Schweers “never submitted [Mr. Rutyna’s] m edical records andJ-A04021-15

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other documentation to any expert medical witness o r requested a case evaluation therefrom;” claimed that “[Attorney Schw eers’] failure to file a

certificate of merit was not the result of not bein g able to find a suitable medical review[, i]nstead, it was the result of [At torney Schweers’] failure to adequately seek one;” asserted that Attorney Schwee rs had actively misled them as to the status and condition of their case; claimed that Attorney Schweers promised them that he would “handle” the f ees associated with procuring an expert opinion; and, claimed that Atto rney Schweers and the Law Firm promised to pay all of the litigation cost s 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 Appell ants failed to produce an expert medical report to support their action, A ppellants attached an expert medical report to their response. The repor t was authored by Dr. Mark R. Foster and, within the report, Dr. Foster o pined that Dr. Donaldson had deviated from the standard of care during and f ollowing Mr. Rutyna’s

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3 Appellants also denied the movants’ unsupported cl aim that Attorney Schweers “obtained two expert reports.” Appellants ’ Response to Motion for Summary Judgment, 12/11/12, at ¶ 41.J-A04021-15

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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 sac ral nerves, as they passed by his operative sight witho ut documenting – or apparently being aware of – the da mage that he had done. Not only was Dr. Donaldson unabl e to describe what happened, but he does not even descri be 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. Althou gh 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 the n attributed the problem to operative stretch. An MR I was performed to rule out cauda equine syndrome because Dr. Donaldson still did not recognize the neurologic pe rmanent deficit that he had caused. Consequently, Dr. Donaldson not only deviated from the standard of care during surgery, he also deviated i n the standard of care by failing to recognize and care f or the injury caused. He further suggests in his notes (s ome 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 rec overy despite decadron, which was given for the motor wea kness (not even recognizing the neurologic damage elimina ting continence), and the admission to physical medicine and rehabilitation notes demonstrate “a significant dim inish of the right extensor halluces longus, EHL which is L5 nerve root and would be involved with the L4-5 disc” as b eing the grade of 2 out of 5, which is less than anti-gravit y strength, as anti-gravity strength is 3 out of 5. To a reasonable degree of medical certainty, Dr. Do naldson caused an intraoperative dural leak which damaged t he sacral nerve roots. This damage to the sacral nerv e roots caused permanent neurologic damages and eliminated bowel and bladder continence, which were not evenJ-A04021-15

- 7 - recognized by the attending surgeon performing the procedure. In addition, prolonged retraction damag ed 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 J udgment). Within Appellants’ response, Appellants also averre d that, after their medical malpractice action was dismissed, they reta ined a new attorney and their new counsel “was easily able to obtain” a fav orable 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 m otion occurred on December 17, 2012. See Scheduling Order, 11/21/12, at 1. Following oral argument, counsel for Attorney Schweers and th e 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 e stablishing a breach of a standard of care by the lawyer. This is a 2007 docket case (six years old) and [Appellants] have h ad ample time to secure an expert to establish a breac h 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 Appell ants “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 :J-A04021-15

- 8 - AND NOW, to wit, this 22 nd day of [February], 2013, upon consideration of [Attorney Schweers’ and the Law Fi rm’s] Motion for Summary Judgment it is hereby ORDERED, ADJUDGED and DECREED that [Appellants are to] provi de an expert report as to liability within 45 days. F ailure 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 Fi rm] 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 [tri al] court, indicating that [Appellants’ counsel had not] recei ved the February 22[, 2013] order. On April 30, 2013, afte r hearing argument, the [trial] court entered summary judgmen t 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, Appell ants claimed that the trial court erred in granting summ ary judgment to Attorney Schweers and the Law Firm beca use “the [trial court] docket did not reflect that noti ce was given of the entry of the order directing [Appellants] to provide an expert report, and [Appellants], in fact, never rec eived the order.”] Rutyna v. Schweers , 100 A.3d 325 (Pa. Super. 2014) (unpublished memorandum) at 4 (internal footnotes and some capit alization omitted) (internal italics added). On March 31, 2014, this Court vacated the trial cou rt’s summary judgment order and remanded the case for further pr oceedings. As we explained, “[o]ur review of the docket show[ed] tha t there [was] no notation [on the docket, indicating that the February 22, 20 13] order was sent to theJ-A04021-15

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parties[,] as required by [Pennsylvania Rule of Civ il 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 lega l report to support their legal malpractice claim. The report, which w as authored by Dennis M. Blackwell, Esquire, declared in relevant part:

[] based on my experience, it is my opinion, expres sed to a reasonable degree of professional certainty, that t he standard of care prevailing in Western Pennsylvania in 2006 required that an attorney handling a medical malpra ctice case for a client make some effort to obtain an exp ert witness to support a certificate of merit, and that an attorney that did not contact so much as a single p otential expert had breached that duty of care. It is also my opinion, expressed to a reasonable de gree of professional certainty, that [] the standard of car e 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 onl y 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 sta ndard of care prevailing in Western Pennsylvania in 2006 req uired that an attorney handling a medical malpractice cas e 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 prompt ly and accurately report to his clients, [Appellants], dev elopmentsJ-A04021-15

- 10 - in the search for an expert, did not meet the appli cable standard of care. Report of Dennis M. Blackwell, Esquire, dated 4/7/1 4, at 6 (emphasis in original). On April 17, 2014, Attorney Schweers and the Law Fi rm filed a selftitled “renewed motion for summary judgment.” With in this filing, Attorney Schweers and the Law Firm claimed that Attorney Bla ckwell’s expert legal report was insufficient to defeat their summary jud gment motion because: 1) “no legal authority exists to support [Attorney Blackwell’s] assertion . . . that the standard of care in Pennsylvania in 2006 r equired an ‘attorney handling a medical malpractice case for a client [t o] contact more than one potential expert to support a certificate of merit, and that an attorney that only contacted a single potential expert had breach ed that duty of care;’” 2) Attorney Blackwell did not opine that “the standard of care prevailing in Western Pennsylvania in 2006 required that an attor ney handling a medical malpractice case for a client continue to search fo r an expert to support a certificate of merit, until he finds one;” and, 3) Attorney Schweers “obtained . . . two expert reviews that did not support [Appe llants’] 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 memoran dum order, the trial court declared that Attorney Blackwell’s expert leg al report was insufficient to defeat the summary judgment motion because Attor ney Blackwell refusedJ-A04021-15

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to opine that “the standard of care prevailing in W estern Pennsylvania in 2006 required that an attorney handling a medical m alpractice 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 Appe llants now raise the following claims to this Court: 4

[1.] Did the [trial] court err in citing only a sma ll portion of the expert report, when a reading of the report as a whole clearly set forth sufficient grounds to support a f inding that [Attorney] Schweers failed to comply with the stand ard of care? [2.] Did the trial court commit reversible error wh en, in deciding [the] summary judgment motion, it removed from the fact-finder the question of the weight to be ac corded [Appellants’] legal expert opinion and purported to make that determination, itself? [3.] Did the [trial] court err in making certain fi ndings of fact, when those facts had clearly been disputed by [Appellants]? Appellants’ Brief at 4 (some internal capitalizatio n omitted).

We note: Our scope of review of a trial court’s order granti ng or denying summary judgment is plenary, and our standa rd of review is clear: the trial court’s order will be r eversed only

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4 The trial court did not order Appellants to file a concise statement of errors complained of on appeal, pursuant to Pennsylvania R ule of Appellate Procedure 1925(b), and Appellants did not file a Ru le 1925(b) statement on their own initiative.J-A04021-15

- 12 - where it is established that the court committed an error of law or abused its discretion. Summary judgment is appropriate only when the recor d clearly shows that there is no genuine issue of mat erial fact and that the moving party is entitled to judgment a s a matter of law. The reviewing court must view the r ecord in the light most favorable to the nonmoving party and resolve all doubts as to the existence of a genuine issue o f 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 s ummary judgment motion, the trial court necessarily “disregarded [the] opin ions expressed in [Attorney] Blackwell’s [expert] report that unquest ionably support[ed] [Appellants’] claims.” Appellant’s Brief at 20 (so me internal capitalization omitted). According to Appellants, the trial court attempted to support its order by citing to a superfluous statement within A ttorney Blackwell’s expert report and the trial court then erroneously based i ts order upon the superfluous statement. Id. We agree. As this Court has explained: Our Supreme Court has held that “a legal malpractic e action in Pennsylvania requires the plaintiff to prove tha t 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 underlyi ng case (often referred to as proving a ‘case within a case ’).”J-A04021-15

- 13 - Kituskie v. Corbman , 714 A.2d 1027, 1030 (Pa. 1998). To prove [a legal] malpractice action, the plaintif f “must initially establish by a preponderance of the evide nce that he would have recovered a judgment in the underlyin g 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 wa s 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 compen sated for [his] loss.” Id. To establish [the] legal malpractice claim, the plaintiff must satisfy the following thr ee-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 th at Attorney Schweers was professionally negligent because he fa iled to timely file a certificate of merit in the underlying medical malp ractice case and because, during the underlying action, Attorney Schweers mis represented the status of Appellants’ case “to conceal his misconduct and/ or preclude [Appellants] from retaining another attorney.” Appellants’ Comp laint, 12/5/07, at ¶¶ 17- 19. At the close of discovery, Attorney Schweers a nd the Law Firm filed a summary judgment motion, wherein they raised the fo llowing grounds for relief: Attorney Schweers obtained a negative expe rt opinion from Dr.J-A04021-15

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Perling and, therefore, Attorney Schweers was unabl e 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 conclu de that Attorney Schweers should have found “a doctor that was willing to opi ne that [Appellants’ medical malpractice] case had merit;” and, Appellan ts refused to pay for their medical malpractice case to be reviewed by ot her experts. Appellants responded to the summary judgment motion by: claiming that Dr. Perling’s review of the case was necessari ly incomplete, as Dr. Perling had reviewed the case before all of Mr. Rut yna’s relevant medical information was collected; denying Attorney Schweer s’ unsupported statement that he received a second negative expert opinion in the medical malpractice case; and, claiming that Attorney Schwe ers promised them that he would advance the fees necessary to obtain furth er expert medical reviews and that the firm would pay for all litigat ion expenses. Further, Appellants filed an expert legal report, authored b y Attorney Blackwell, wherein Attorney Blackwell declared:

[] based on my experience, it is my opinion, expres sed to a reasonable degree of professional certainty, that t he standard of care prevailing in Western Pennsylvania in 2006 required that an attorney handling a medical malpra ctice case for a client make some effort to obtain an exp ert witness to support a certificate of merit, and that an attorney that did not contact so much as a single p otential expert had breached that duty of care.J-A04021-15

- 15 - It is also my opinion, expressed to a reasonable de gree of professional certainty, that [] the standard of car e 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 onl y 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 sta ndard of care prevailing in Western Pennsylvania in 2006 req uired that an attorney handling a medical malpractice cas e 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 prompt ly and accurately report to his clients, [Appellants], dev elopments in the search for an expert, did not meet the appli cable standard of care. Report of Dennis M. Blackwell, Esquire, dated 4/7/1 4, at 6 (emphasis in original). Notwithstanding the fact that the above-quoted, pen ultimate paragraph in Attorney Blackwell’s report was superf luous, the trial court based its summary judgment ruling upon that superfl uous statement. Specifically, the trial court granted Attorney Schw eers’ and the Law Firm’s motion for summary judgment because Attorney Blackw ell did not render an opinion on whether “the standard of care prevailing in West ern Pennsylvania in 2006 required that an attorney hand ling a medical malpractice case for a client continue to search fo r an expert to support a certificate of merit, until he finds one.” Trial C ourt Opinion, 7/14/14, at 2.J-A04021-15

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The trial court’s reasoning in this case was errone ous, given that Attorney Blackwell’s statement in the above-quoted, second-to-last paragraph neither added to nor detracted from the o pinions contained in his expert report. Further, when Attorney Blackwell’s actual, stated opinions in the expert report are combined with Appellants’ res ponse to the summary judgment motion, it is evident that the trial court erred when it granted summary judgment to Attorney Schweers and the Law F irm. Indeed, when the record is viewed in the light most favorable to Appellants, the record demonstrates that Attorney Schweers contacted, at m ost, one expert – Dr. Perling – to support the certificate of merit in th e underlying case. 5 However, as Attorney Blackwell opined, when an atto rney contacts only one potential expert to support a certificate of merit and then receives a negative response, the attorney breached the standard of car e he owes to his client. In the words of Attorney Blackwell:

the standard of care prevailing in Western Pennsylv ania 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.

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5 As stated, the record, viewed in a light most favor able to the Appellant, leads to the conclusion that Attorney Schweers cont acted only one potential medical expert. Attorney Schweers and the Law Firm refute this and claim that a second expert was contacted (a factual alleg ation denied by the Appellants). Thus, at a minimum, a genuine issue o f material fact exists which makes summary judgment inappropriate.J-A04021-15

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Report of Dennis M. Blackwell, Esquire, dated 4/7/1 4, at 6. Attorney Blackwell’s stated opinion clearly demonst rates that there is a genuine issue of material fact as to whether Attorn ey Schweers breached his duty of care when he contacted only one potential e xpert to support the certificate of merit. The trial court’s ruling to the contrary was erroneous. 6,

7, & 8

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6 The trial court also erred in granting summary jud gment to Attorney Schweers and the Law Firm, as Appellants’ professio nal malpractice claim was not limited to the single contention that Attor ney Schweers was negligent in contacting only one potential expert. Rather, within Appellants’ complaint, Appellants also claimed that Attorney Sc hweers was professionally negligent because he misrepresented the status of Appellants’ case “to conceal his misconduct and/or preclude [Ap pellants] from retaining another attorney.” Appellants’ Complaint, 12/5/07, at ¶¶ 17-19. Moreover, Appellants claimed that they suffered harm as a res ult of Attorney Schweers’ misrepresentations and concealments and Appellants attached an expert report from Attorney Blackwell, wherein Attorney Bl ackwell specifically opined that Attorney Schweers’ misrepresentations a nd concealments constituted a breach of an attorney’s duty of care. Thus, Appellants established that there was a genuine issue of mater ial fact as to whether Attorney Schweers was professionally negligent when he, allegedly, misrepresented the status of Appellants’ case “to c onceal his misconduct and/or preclude [Appellants] from retaining another attorney.” Id.

7 According to Appellants’ second claim on appeal, t he 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 c laim 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; rath er, such determinations reside in the sole province of the t rier of fact”).J-A04021-15

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Further, although this Court may affirm a trial cou rt’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 f iled by Attorney Schweers and the Law Firm. Therefore, we vacate th e trial court’s order and remand for further proceedings. Order vacated. Case remanded. Jurisdiction relinq uished. Judge Bowes joins this memorandum. Judge Strassburger files a Concurring Statement.

(Footnote Continued) _______________________

8 Within Appellants’ third claim on appeal, Appellan ts contend that the trial court is biased against them. Appellants thus requ est this Court to instruct that, on remand, a different trial judge hear the c ase. Appellants’ Brief at 28. In support of their claim, Appellants note tha t, within the trial court’s factual recitation to this Court, the trial court a cted in contravention of its standard of review by purporting to resolve two dis puted factual issues against Appellants and in favor of Attorney Schweer s and the Law Firm. Id. at 22-24. Further, Appellants note: that the tria l court initially “dismissed [Appellants’ c]omplaint because [Appellants] had no t filed an expert report, notwithstanding [Appellants’ counsel’s] repeated pr otests 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 opinion s stated in [Attorney Blackwell’s] expert report in favor of a non-opinio n 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 ou r 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