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PA: Speculative and Remote Claims Do Not Amount to a Cause of Action for Legal Malpractice

Pashak v. Barish, 303 Pa. Super. 559, 450 A.2d 67 (1982).

PA: Underlying negligence action

Student Contributor: Laura Binski

Facts: Mr. Pashak was injured working as a longshoreman. He sued the ship’s owner for negligence, claiming that the ship was unseaworthy. Mr. Pashak hired some lawyers who recommended that he settle the case out of court for $100,000. Mr. Pashak agreed to settle the case. He was later notified that contrary to his lawyers’ advice, his statutory compensation benefits would be ended because of the settlement. When Mr. Pashak’s wife found out that she also would not be able to collect statutory compensation benefits as a result of the settlement, she sued the lawyers for legal malpractice. The lawyers defended themselves on the basis that Mrs. Pashak’s loss was too speculative and remote to justify her winning her case against the lawyers. The trial court agreed with the lawyers and dismissed Mrs. Pashak’s complaint with prejudice.

Issue: Was Mrs. Pashak’s loss too speculative and remote to justify her winning a legal malpractice case against her husband’s lawyers?

Ruling: Yes. The court reasoned that a mere breach of professional duty, causing only speculative damage or the threat of future damage is not enough to create a feasible cause of action of legal malpractice. In this case, Mrs. Pashak’s right to compensation would not become available until Mr. Pashak died. Thus, Mrs. Pashak’s right to the benefit was dependent upon her surviving him, and the amount of money she would receive was also dependent on whether the couple had children. Since there were so many conditions placed upon her receipt of the benefits, the court held that Mrs. Pashak’s claim was did not rise to the level of harm necessary in a legal malpractice lawsuit.

Lesson: To give rise to a legal malpractice claim, identifiable harm must exist. “The mere possibility or even probability that the plaintiff will sustain an injury at some future time does not alter the speculative nature of the damage claim or support a cause of action for legal malpractice…damages are speculative only if the uncertainty concerns the fact of damages rather than the amount.” R. Mallen & V. Levitt, Legal Malpractice § 302 (2d ed. 1981). 

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Posted in: Damages, Pennsylvania, Torts/Personal Injury