J. S15016/17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

CURTIS C. PHILLIPS, JR., : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

APPELLANT :

v. :

:

:

BRADLEY WARREN WEIDENBAUM, ESQ. :

:

: No. 2342 EDA 2016

Appeal from the Order Entered June 21, 2016

In the Court of Common Pleas of Northampton County 

Civil Division at No(s): 2016-01495

 

BEFORE: BOWES, J., DUBOW, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY DUBOW, J.: FILED APRIL 05, 2017

Appellant, Curtis C. Phillips, Jr., appeals pro se from the Order entered 

in the Northampton County Court of Common Pleas sustaining the 

Preliminary Objections filed by Bradley Warren Weidenbaum, Esq. 

(“Appellee”), and dismissing Appellant’s Complaint. We affirm.

Appellee represented Appellant in an unrelated criminal matter. On 

February 23, 2016, displeased by the outcome of his criminal case,1

 

1 After a trial, a jury convicted Appellant of three drug offenses, including 

Possession with Intent to Deliver. 35 P.S. § 780-113(a)(30). On February 

14, 2014, the trial court sentenced him to two to eight years’ incarceration. 

On direct appeal, this Court concluded Appellant’s issues were meritless, but 

sua sponte vacated and remanded for resentencing after finding that 

Appellant had received an illegal mandatory minimum sentence under 18 

Pa.C.S. § 7508. See Commonwealth v. Phillips, No. 2168 EDA 2014 (Pa. 

Super. filed June 21, 2016).
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Appellant filed the instant legal malpractice action against Appellee asserting 

claims of Breach of Contract, Negligence, and violation of the Unfair Trade 

Practices and Consumer Protection Law (“UTPCPL”), 73 P.S. § 201-1 et seq. 

Appellant also sought attorney’s fees and punitive damages.

On March 28, 2016, Appellee’s counsel entered his appearance, and 

filed a Demand for a Jury Trial and a Notice of Intention to Enter Judgment 

of Non Pros pursuant to Pa.R.C.P. No. 1042.7, based upon Appellant’s failure 

to file a Certificate of Merit. On April 1, 2016, Appellant filed a Certificate of 

Merit.

On April 4, 2016, Appellee filed Preliminary Objections in the nature of 

demurrer to Appellant’s Complaint, seeking dismissal of the Complaint on 

the grounds of (1) in pari delicto;

2

(2) the legal insufficiency of the Breach of 

Contract and Negligence claims; (3) the inapplicability of the UTPCPL to the 

legal profession; and (4) the failure to support request for attorney’s fees. 

The final Preliminary Objection was in the form of a Motion to Strike the 

Complaint in its entirety for Plaintiff’s alleged failure to comply with Pa.R.C.P. 

No. 1024 requiring proper verification of the Complaint. 

On April 18, 2016, Appellant filed a letter seeking an extension of time 

in which to reply to the Preliminary Objections and averring that the 

Prothonotary of the Northampton County Court of Common Pleas refused to 

 

2 This doctrine essentially provides that a plaintiff who participated in 

wrongdoing may not recover damages from the wrongdoing. 
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file a Praecipe for Default Judgment that he had allegedly sent along with his 

Certificate of Merit on April 1, 2016. 

On June 21, 2016, the trial court sustained the majority of the 

Preliminary Objections.3 With respect to Appellee’s Preliminary Objection in 

the nature of a Motion to Strike the Complaint for failure to file a proper 

verification, the court stated: 

As [Appellee] points out, the Complaint in the instant matter is 

wholly unverified. Indeed, it contains a Notice to Plead and a 

Certificate of Service, but it is not verified. Consequently, the 

Court must strike the Complaint in its entirety. However, 

pursuant to Pa.R.C.P. 1028(d), the Plaintiff shall have thirty (30) 

days within which to file an amended pleading consistent with 

this Order of Court and Statement of Reasons.

Trial Court Order, 6/21/16, at 13. 

Appellant did not file an Amended Complaint. Rather, Appellant filed a 

Notice of Appeal dated July 20, 2016, which the Court of Common Pleas 

received on July 26, 2016, seeking review of the dismissal of the Complaint 

entered by the court on June 21, 2016. Appellant stated in that Notice, that 

he “hereby clearly indicates his intent to stand on the Complaint as filed.” 

Notice of Appeal, dated 7/20/16.4 

Appellant and the trial court complied with Pa.R.A.P. 1925. 

 

3 The court overruled Appellee’s Preliminary Objection pertaining to in pari 

delicto, but sustained all of the other Preliminary Objections. 

4 Upon the expiration of the 30 days in which the court permitted Appellant 

to amend his Complaint, the June 21, 2016 Order became final and 

appealable.
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Appellant raises the following six issues on appeal:

1. Did the Northampton County Court of Common Pleas 

commit reversible error when the court Prothonotary 

refused to file a timely and properly submitted Praecipe for 

Default Judgment filed by the then pro se [Appellant]?

2. Did the Northampton County Court of Common Pleas 

commit reversible error when the court Prothonotary 

removed from the court file a properly submitted and 

briefed Responsive Preliminary Objections – and 

subsequently refused to consider any part of [Appellant’s] 

argument – filed by the pro se [Appellant] in response to 

[Appellee’s] Preliminary Objections?

3. Did the Northampton County Court of Common Pleas 

commit reversible error when it failed to acknowledge the

facts set forth by [Appellant] as the basis of a legally 

binding oral contract, and concluded that the lawyer-client 

relationship did not ensue when [Appellee] had made the 

oral contract referred to within [t]he Complaint, nor when 

[Appellee] had been paid a retainer fee for his services, 

but rather when an un-dated, un-signed written “fee 

agreement” – which was based upon the agreements of 

the identified oral contract – was forwarded to [Appellant] 

after [Appellee] had received payment for his services?

4. Did the Northampton County Court of Common Pleas 

commit reversible error when it dismissed the Negligence 

claim within [t]he Complaint under Bailey v. Tucker as 

opposed to staying the prosecution pending final 

disposition of the appeal of the underlying criminal matter 

as [t]he Bailey Court indicates should be done?

5. Did the Northampton County Court of Common Pleas 

commit reversible error when it concluded that [Appellee’s] 

fraudulent retaining practices as alleged within [t]he 

Complaint fell under the “practice of law” language within 

Byers v. Richmond, 594 Pa. 694 (2007) pursuant to 

Commonwealth v. Cole, 709 A.2d 994, 997 (Pa. 

Commw. 1999), appeal denied, 558 Pa. 611, 737 A.2d 606 

(Pa. 1999)?
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6. Did the Northampton County Court of Common Pleas 

commit reversible error when it dismissed [t]he 

[C]omplaint for a failure to verify due to the fact that 

[Appellant] signed [t]he Complaint on page 18 thereof 

which embodied the same legal force of a formal 

verification pursuant to Pa.R.C.P. 1023.1, as well as that 

[Appellant] did in fact file an amended verification form 

with [t]he [c]ourt upon receipt of [Appellee’s] objections?

Appellant’s Brief at 2-3.5

In Appellant’s first issue, he claims that the trial court Prothonotary 

improperly refused to accept and docket Appellant’s Praecipe for Entry of 

Default Judgment on count 1 (breach of contract), which he purports to have 

sent along with a Certificate of Merit, on March 29, 2016. Id. at 4. 

Appellant claims that the Prothonotary denies having received the Praecipe

and supporting documentation; but notes that the Prothonotary did file the 

Certificate of Merit, which was part of the same paperwork. Id. Appellant 

argues that, because he properly sent the Prothonotary the Praecipe for 

Entry of Default Judgment, there was no reason for the court not to enter 

Judgment in his favor. Id. at 5. 

The June 21, 2016 Order, which is the subject of this appeal, did not 

address the issue Appellant purports to challenge in his first claim. The 

 

5 Appellant has also included in the argument portion of his Brief a threeparagraph section titled “Remainder of the Order.” Because Appellant did 

not raise these issues in his Statement of Questions Involved, these issues 

are waived. See Pa.R.A.P. 2116(a); see also Thomas v. Elash, 781 A.2d 

170, 176-77 (Pa. Super. 2001) (reiterating that “an appellant must present 

all issues on appeal in the Statement of Questions Involved section of his 

brief.”).
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appealed order merely sustained in part and denied in part Appellee’s 

Preliminary Objections. As the trial court noted, “this issue is addressed to 

actions or omissions alleged of the Prothonotary, and it is beyond the scope 

of the June 21, 2016 Order of Court that is the subject of this appeal.” Trial 

Ct. Op. at 2. 

We further note that, pursuant to Pa.R.A.P. 2115(b), Appellant was 

required to include a statement in his Brief immediately following the 

Statement of Jurisdiction detailing the alleged failure of the Prothonotary to 

act and a brief citation of the statute under which it is claimed such action is 

required. Appellant did not do so. Instead, he simply indicates he is seeking 

review of the dismissal of the Complaint following the grant of Appellee’s 

Preliminary Objections. See Appellant’s Brief at 1. 

Finally, even assuming arguendo that Appellant had attempted to file a 

Praecipe of Default Judgment based on Appellee’s failure to respond timely 

to the Complaint, such Praecipe would have been rejected by the 

Prothonotary. Pursuant to our rules of civil procedure, in a professional 

liability action, a defendant is allowed twenty days after service of the 

Certificate of Merit to file a responsive pleading. Pa.R.C.P. No. 1042.4. 

Since Appellant alleges that he sent the Praecipe at the same time as the 

Certificate of Merit, filing the Praecipe for Default Judgment would have been 

premature. Appellant’s first issue has no merit. 
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Appellant next avers that the trial court Prothonotary erred in 

removing his “Responsive Preliminary Objections” from the docket. 

Appellant’s Brief at 5.6 He also claims that trial court erred in not 

considering his “Responsive Preliminary Objections” before ruling on 

Appellee’s Preliminary Objections, even though Appellant forwarded a copy 

of them to the trial court judge assigned to rule on the Preliminary 

Objections. Id. 

As the trial court observed, this issue is beyond the scope of the June 

21, 2016 Order from which this appeal is taken. See Trial Ct. Op. at 2. 

Moreover, Appellant again failed to include a statement pertaining to the 

Prothonotary’s challenged action immediately after the Statement of 

Jurisdiction, as required by Pa.R.A.P. 2115(b). Moreover, he has not cited to 

any authority to support of his claim of alleged error. Therefore, we find this 

issue waived. See Pa.R.A.P. 2119(a); In re Estate of Whitley, 50 A.3d 

203, 210-11 (Pa. Super. 2012) (holding that the ”[f]ailure to cite relevant 

legal authority constitutes waiver of the claim on appeal.” (citation 

omitted)).

 

6 Annexed to Appellant’s Brief as Exhibit “B” is a copy of a document entitled 

“Plaintiff’s Preliminary Objections to Defendant’s Preliminary Objections” with 

a court of common pleas file stamp dated May 19, 2016, with a giant X and 

scribbles drawn over it.
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Appellant’s final four issues challenge the trial court’s Order sustaining 

Appellee’s Preliminary Objections and dismissing Appellant’s Complaint. We 

are guided by the following standard: 

Our standard of review of an order of the trial court 

overruling or granting preliminary objections is to 

determine whether the trial court committed an error of 

law. When considering the appropriateness of a ruling on 

preliminary objections, the appellate court must apply the 

same standard as the trial court.

Preliminary objections in the nature of a demurrer test the 

legal sufficiency of the complaint. When considering 

preliminary objections, all material facts set forth in the 

challenged pleadings are admitted as true, as well as all 

inferences reasonably deducible therefrom. Preliminary 

objections which seek the dismissal of a cause of action 

should be sustained only in cases in which it is clear and 

free from doubt that the pleader will be unable to prove 

facts legally sufficient to establish the right to relief. If any 

doubt exists as to whether a demurrer should be 

sustained, it should be resolved in favor of overruling the 

preliminary objections.

Richmond v. McHale, 35 A.3d 779, 783 (Pa. Super. 2012), quoting 

Feingold v. Hendrzak, 15 A.3d 937, 941 (Pa. Super. 2011).

In his third issue, Appellant claims the trial court erred in concluding 

that he had failed to plead sufficiently a Breach of Contract legal malpractice 

claim. Although Appellant concedes that the parties had not incorporated 

certain oral terms into the written contract they ultimately executed, he 

nonetheless claims that Appellee was legally bound to perform the tasks he 

had orally agreed to perform and the failure to do so constituted a breach of 

contract. Appellant’s Brief at 6-8.
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A legal malpractice claim may be brought by an aggrieved client in an 

action sounding in tort and/or breach of contract. Wachovia Bank, N.A. v. 

Ferretti, 935 A.2d 565, 570 (Pa. Super. 2007).

The elements of a legal malpractice action, sounding in 

negligence,[7]include: (1) employment of the attorney or 

other basis for a duty; (2) failure of the attorney to 

exercise ordinary skill and knowledge; and (3) that such 

failure was the proximate cause of the harm to the 

plaintiff. Bailey v. Tucker, 533 Pa. 237, 621 A.2d 108, 

112 (1993). With regard to a breach of contract claim, “an 

attorney who agrees for a fee to represent a client is by 

implication agreeing to provide that client with professional 

services consistent with those expected of the profession 

at large.” Id. at 115.

Id. at 570-71. See also CoreStates Bank, N.A. v. Cutillo, 723 A.2d 1053, 

1058 (Pa. Super. 1999) (“A cause of action for breach of contract must be 

established by pleading (1) the existence of a contract, including its essential 

terms, (2) a breach of a duty imposed by the contract and (3) resultant 

damages.”). Therefore, where, as here, a complaint asserts a legal

malpractice claim sounding in both tort and contract, the plaintiff/former 

client is required to prove that the attorney breached a duty owed to him, 

and that the breach caused him to suffer damages.

Generally, if parties to an oral contract agree on the essential terms of 

the contract and intend to be bound by them, they have formed a valid legal 

contract, even if they intend also to incorporate these terms, and possibly 

 

7 Traditionally, our courts have treated claims of professional negligence 

alleging criminal defense malpractice as trespass actions. See Bailey v. 

Tucker, 621 A.2d 108, 112 (Pa. 1993).
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others, in a written contract at a later date. Krause v. Great Lakes 

Holdings, Inc., 563 A.2d 1182, 1186 (Pa. Super. 1989). However, if the 

parties contemplate that their agreement is not final until it is reduced to 

writing, they have not formed a valid legal contract until so doing. Id. 

In the Complaint, Appellant alleged that, when the parties met to 

discuss the possibility of a lawyer-client relationship, Appellant set forth a 

number of tasks Appellant expected Appellee to perform, and Appellee 

agreed to such performance. See Complaint, 2/23/16, at ¶¶ 5, 6, 8-10. 

However, Appellant also asserted in the Complaint that the lawyer-client 

relationship did not begin until the execution of a “written retainment [sic] 

fee agreement and contract with [Appellee] for these services [that] 

commenced on May 18, 2013.” Id. at ¶ 11. Appellant’s Complaint 

specifically claims that, though “[t]hese claims arise out of specific oral 

agreements made between [Appellant] and [Appellee,]” they were solidified 

through[] entry into a legally binding contract.” Id. at ¶ 4.

Our review of the written contract appended to Appellant’s Complaint 

reveals that the contract does not include any specific tasks for 

performance; rather, it provides that “[Appellee’s] firm agrees to exert its 

best efforts to obtain the best possible results in [Appellant’s] case.” Letter, 

May 20, 2013. Appellant has not pleaded any facts that demonstrate that 

Appellee did not exert his “best efforts to obtain the best possible results” in 

Appellant’s criminal case, or any facts upon which the trial court could 
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conclude that Appellee failed to provide legal services consistent with the 

relevant standard of care.

It is clear from the Complaint that Appellant pleaded that his Breach of 

Contract claim arose from the written agreement between the parties, and 

not from the terms to which he and Appellee allegedly orally agreed. It is 

also clear that, in failing to plead with specificity the standard of care, or 

how the services provided by Appellee fell below the standard of care, 

Appellant failed to plead facts legally sufficient to establish his right to relief. 

Accordingly, the trial court did not err in sustaining Appellee’s Preliminary 

Objection as to Appellant’s Breach of Contract claim.8

In his fourth issue, Appellant challenges the trial court’s reliance on 

Bailey, supra, in dismissing his Negligence claim. He claims that the trial 

court erroneously interpreted Bailey to require, inter alia, that he plead in 

his Complaint that he has “pursued post-trial remedies and obtained relief 

which was dependent upon attorney error.” Appellant’s Brief at 9, citing

Bailey, 621 A.2d at 115. Appellant argues that Bailey only requires that he 

be able to establish this fact at some point prior to a final disposition in his 

 

8 Alternatively, Appellant argues that the trial court erred in finding the 

written fee agreement between the parties to be a legally enforceable 

contract because its terms were too ambiguous to be enforceable. 

Appellant’s Brief at 7. Appellant also avers that the written fee agreement is 

not enforceable because the parties did not sign it. Id. at 7-8. These 

claims, if true, would render his Breach of Contract action void ab initio. 

Accordingly, we do not consider them to be valid alternate arguments 

requiring our review.
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legal malpractice case. Id. Appellant argues that the court should have 

stayed his claim pending final disposition of his criminal matter. Our review 

indicates, however, that Appellant has misapprehended the totality of the 

basis for the trial court’s ruling.

In Bailey, our Supreme Court articulated the following required 

elements for a trespass-negligence based legal malpractice claim stemming 

from representation in a criminal matter.

... [T]oday we hold that a plaintiff seeking to bring a 

trespass action against a criminal defense attorney, 

resulting from his or her representation of the plaintiff in 

criminal proceedings, must establish the following 

elements:

(1) The employment of the attorney;

(2) Reckless or wanton disregard of the defendant’s 

interest on the part of the attorney;

(3) the attorney’s culpable conduct was the 

proximate cause of an injury suffered by the 

defendant/plaintiff, i.e., “but for” the attorney’s 

conduct, the defendant/plaintiff would have obtained

an aquittal [sic] or a complete dismissal of the 

charges.

(4) As a result of the injury, the criminal 

defendant/plaintiff suffered damages. 

(5) Moreover, a plaintiff will not prevail in an action 

in criminal malpractice unless and until he has 

pursued post-trial remedies and obtained relief which

was dependent upon attorney error; additionally, 

although such finding may be introduced into 

evidence in the subsequent action it shall not be 

dispositive of the establishment of culpable conduct 

in the malpractice action.
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Id. at 114-15 (footnotes omitted).

The Bailey Court further explained that if an attorney defendant is 

served with a Complaint alleging professional malpractice in a criminal 

matter, the defendant may file a Preliminary Objection in the nature of a 

demurrer. The Court instructed that the “trial court shall then reserve its 

ruling on said objection until the resolution of the post-conviction criminal 

proceedings.” Id. at 115 n.13.

The trial court explained its application of Bailey to the instant facts 

as follows:

In this case, while Defendant/Appellee based his demurrer 

in part on the fact that the Plaintiff/Appellant’s appeal was 

still pending, he also argued Plaintiff/Appellant’s failure to 

plead the second and third elements of his claim, 

specifically that Defendant/Appellee acted in “reckless or 

wanton disregard” for Plaintiff/Appellant’s interests and 

that, but for such culpable conduct, Plaintiff/Appellant 

would have been acquitted or his charges dismissed. In 

sustaining the demurrer, the [c]ourt reviewed the claim 

and found it legally insufficient to withstand demurrer. 

Although not expressly stated in the [c]ourt’s [prior] 

opinion, this finding was premised not only on the 

pendency of Plaintiff/Appellant’s appeal of his criminal 

matter, but also on his failure to plead the second and 

third elements of his claim.

Trial Ct. Op. at 3-4.

Our review of Appellant’s Complaint confirms the trial court’s finding 

that Appellant failed to plead the second and third Bailey factors, and this 

failure was fatal to Appellant’s claim. This issue, therefore, lacks merit.
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In his fifth issue, Appellant challenges the trial court’s determination 

that the allegations in the Complaint fell within the definition of “practice of 

law,” which therefore barred Appellant from raising a claim under the 

UTPCPL. Appellant’s Brief at 10. Appellant argues that he alleged that 

Appellee engaged in “fraudulent and deceptive retaining practices,” which 

claim is cognizable under the UTPCPL. Id. Appellant avers that, since he 

properly raised a claim under the UTPCPL, the court erred in dismissing this 

count of his Complaint. Id.

The UTPCPL creates a private right of action for “[a]ny person who 

purchases or leases goods or services primarily for personal, family[,] or 

household purposes and thereby suffers any ascertainable loss of money or 

property, real or personal, as a result of the use or employment by any 

person of a method, act[,] or practice declared unlawful by section 3[] of 

[the] act . . ..” 73 P.S. § 201-9.2(a). In 2007, however, the Pennsylvania 

Supreme Court found the UTPCPL inapplicable to the legal profession. 

Beyers v. Richmond, 937 A.2d 1082 (Pa. 2007). 

Notwithstanding the holding in Beyers, without citing to any 

controlling authority, Appellant argues that claims that an attorney engaged 

in fraudulent and deceptive retaining practices are permissible under the 

UTPCPL. Because Appellant has not supported this argument with citation to 

controlling authority, we find this claim waived. See Pa.R.A.P. 2119(a). 

Moreover, even if it were not waived, this Court is bound by the precedential 
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decision of the Pennsylvania Supreme Court in Beyers, and, thus, 

Appellant’s claim would fail.

In his final issue, Appellant claims that the court erred in dismissing 

his Complaint pursuant to Pa.R.C.P. No. 10249 because he filed a “matter of 

course amendment to the Complaint[,]” which was properly verified. 

Appellant’s Brief at 11. Appellant has, again, failed to support this argument 

with citation to any authority. Accordingly, it is also waived.

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/5/2017

 

9 Rule 1024 provides that: “every pleading containing an averment of fact 

not appearing of record in the action or containing a denial of fact shall state 

that the averment or denial is true upon the signer’s personal knowledge or 

information and belief and shall be verified. The signer need not aver the 

source of the information of expectation or ability to prove the averment or 

denial at the trial. A pleading may be verified upon personal knowledge as 

to a part and upon information and belief as to the remainder.” Pa.R.C.P. 

No. 1024(a).