ATTORNEY MALPRACTICE-STATE ACTION-SETTLEMENT- Kilmer v. Sposito, 146 A.3d 1275 (Pa. Super. 2016)

In this appeal, Appellant Janet Kilmer (“Appellant”) appeals the trial court’s order sustaining preliminary objections in the nature of a demurrer filed by her former attorney, Appellee James Sposito (“Appellee”), in Appellant’s legal malpractice and breach of contract case. Because we conclude that the trial court erred as a matter of law, we reverse.

According to the complaint, Appellee negligently and carelessly advised Appellant, the surviving spouse, to file an election to take against her husband’s will under the provisions of 20 Pa.C.S.A. § 2203, which would entitle her to one-third of husband’s estate,¹ when pure operation of law pursuant to 20 Pa. C.S.A. §§ 2507 and 2102² would have entitled Appellant to one-half of the estate as a surviving spouse who had married the testator after he made his will. Appellant followed this advice, and Appellee, on Appellant’s behalf, filed an election to take against her husband’s will in Orphan’s Court on June 30, 2009, a move that effectively reduced Appellant’s share of her husband’s estate from one-half to one-third.³

Appellant terminated the services of Appellee upon discovering the significance of exercising her right of election and hired a new attorney, Michael Briechle, Esq., to represent her interests in the disposition of the estate and challenge the validity of her election. Specifically, Appellant, through Attorney Briechle, filed objections to the executors’ Final Account that listed Appellant’s share as one-third of the estate consistent with her election, and she argued that she was, instead, entitled to a one-half share as if her husband had died intestate, pursuant to Section 2507(3), supra. The lower court scheduled a hearing on the issue of Appellant’s lawful share of the estate, but it continued the hearing date on joint motion of the parties, who were negotiating toward settlement. In July of 2011, Attorney Briechle and the estate reached settlement, wherein Appellant agreed to accept a 41.5% share of Husband’s estate.  The question is whether the settlement means that no suit could be brought against the malpracticing attorney.  At issue was the interpretation of Muhammad v. Serassburger, 587 A.2d 1346 (1991) which held that a dissatisfied plaintiff may not sue his or her attorney for malpractice following a settlement with which plaintiff agreed.  The court, however, distinguished Muhammad.  The court said that appellant had no real choice, given the risk, but to settle the underlying action.