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When Legal Malpractice is not Available...

Sabella v. Estate of Milides provides a very key point for those interested in legal malpractice claims. Mainly, if one feels they have been wronged by opposing counsel, they need not worry about the lack of an attorney-client relationship, and may instead file a claim alleging abuse of process and wrongful use of civil proceedings.

This case arose out of a claim filed against the plaintiff Sabella in 2004. The defendant attorney alleged that the plaintiff had been involved in a knowingly fraudulent transfer of property which was subject to a prior suit. The plaintiff, upon being served with this complaint, asserted a cause of action for wrongful use of civil proceedings and abuse of process. Sabella believed the claim was without merit, and that the plaintiffs were not using the process for the right reasons.

At the trial court level, Sabella's complain was dismissed because the court construed it as a professional liability claim. Once the complain was categorized as "professional liability", Pennsylvania law required a certificate of merit be filed by the plaintiff which evidenced another attorney's belief that the attorney's standard of care fell outside accepted standards. Since, the plaintiff did not believe his action to be a professional liability claim; a certificate was thus never filed. The defendants then moved for, and won a non prosjudgment based on the belief that the plaintiff had not met the procedural requirements to follow through with the initial suit. The Superior court disagreed with these actions.

The Superior court ruled that an action is professional negligence if the plaintiff maintains privity of contract with the defendant and the claim raises questions of professional judgment beyond the realm of common knowledge. This means, if there was no ongoing relationship between Sabella and the defendant attorney, then no action for professional malpractice existed, with the exception of a very narrow class of 3rd party beneficiaries. The second requirement that the claim raise questions of professional judgment beyond the realm of common knowledge become moot if there is no privity between the professional and the plaintiff.

The Superior Court did recognize that the action involved questions of professional judgment, but that did not automatically transform the case into one of professional liability requiring a certificate of merit. Since the trial court erred in entering a non prosjudgment because no certificate of merit was required, the case was reversed, and the trial court was instructed to carry on further proceedings.

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