The Pennsylvania Supreme Court will not review a state Superior Court ruling that held that a lawyer's legal malpractice suit against her divorce attorneys alleging breach of contract actually sounded in tort and therefore was not timely filed.

The Pennsylvania Superior Court's decision from last summer upheld a Philadelphia trial judge's decision that had expressly anticipated the possibility of reversal on appeal.

In Michelle Seidner's lawsuit against her former counsel, the law firm of Bock and Finkelman and principal Howard Finkelman, Philadelphia Court of Common Pleas Judge Robert P. Coleman found in favor of Finkelman. In an October 2016 ruling, Coleman said the four-year statute of limitations for breach of contract actions could not be applied to Seidner's complaint. Instead, according to the judge, the suit was subject to the two-year statute of limitations governing tort claims.

However, Coleman said, if the action were considered under a breach-of-contract theory, he would award Seidner with $900,000 in damages. He noted that the Superior Court could take up the issue and reverse his ruling on the statute of limitations, so he detailed his findings on liability and damages.

But on Aug. 31, a three-judge panel of the Superior Court issued a memorandum opinion affirming Coleman's ruling.

“At trial, appellant acknowledged that her 'objective was to obtain a divorce, preserve [her] savings, and obtain financial protection for [her] children,'” Senior Judge William Platt wrote for the panel. ”She did not argue that appellees failed to fulfill the objectives, but only challenged the manner in which they achieved them, and whether the advice provided was within the standard of care.”

The Supreme Court denied allocatur in the case March 13.

The case stems from Seidner's efforts to maintain her beneficiary status on the life insurance policy of her ex-husband, Irving Steven Levy. At the time she filed the complaint, Seidner was an assistant district attorney in the Philadelphia District Attorney's Office, and Levy, who died in 2012 of pancreatic cancer, was a partner at White and Williams. Seidner alleged she was harmed when her attorneys at Bock and Finkelman failed to prevent her beneficiary status from transferring to a trust set up for Seidner and Levy's children.

Platt, joined by President Judge Susan Peikes Gantman and Judge Jacqueline Shogan, noted that Seidner's expert, Pittsburgh-based family law attorney Kenneth Horoho, opined in a report that the defendants failed “'to exercise ordinary skill and knowledge'” when they did not “'treat the insurance policies as a marital asset'” and “'do due diligence regarding the marital estate.'”

“This conclusion supports a negligence action, not one for breach of contract,” Platt said.

According to Platt's opinion, Seidner filed for divorce in 2004, but was still in the midst of divorce in 2008 when she hired the Bock and Finkelman firm. Around that time, Levy was diagnosed with terminal pancreatic cancer, and learned his life expectancy was six months to two years.

Seidner then asked her new attorneys to check on Levy's insurance policies and other assets to make sure her children were taken care of, the opinion said.

According to Platt, Seidner instructed her attorneys to file a motion under Section 3502(d) of Pennsylvania's domestic relations law to preserve her interests as the beneficiary of Levy's life insurance policies. Ultimately, however, Seidner and Levy came to an agreement that involved  establishing a life insurance trust naming the children as beneficiaries.

But immediately following the February 2009 bifurcation hearing that solidified that agreement, Seidner fired Finkelman and his firm because she felt they had failed to adequately protect her economic interests, Platt said. Seidner filed a breach of contract action against her former counsel in October 2012.

But both Coleman and the Superior Court found that was too late because Seidner's claims did not actually allege breach of contract.

“Appellant's complaint alleged that appellees failed to advise her properly of her rights regarding certain life insurance policies, and protect her claim to them,” Platt said. “Appellant did not allege that appellees 'breach[ed] … any of the specific executory promises which comprise the contract[,]' but instead alleged that appellees negligently 'perform[ed] contractual obligations.”

The appeals court also upheld Coleman's ruling that Finkelman himself was not a party to the contract formed when Seidner signed the retention agreement with Bock and Finkelman.

Seidner had argued that because Finkelman was the sole partner or shareholder of the firm, he could be held personally liable for any legal malpractice.

But Platt said the contractual language clearly negated that theory.

“Here, the retention agreement stated, 'Please allow this letter to serve as confirmation of our firm's representation of you and clarification of the basis upon which fees will be charged by our firm,'” Platt said. “Based on the foregoing unambiguous language, we conclude that the trial court properly found that Finkelman signed the agreement as an agent of the law firm, and is not personally liable.”

Jeffrey McCarron of Swartz Campbell, an attorney for Bock and Finkelman, could not be reached for comment on the allocatur denial.

Seidner's attorney, Clifford Haines of Haines & Associates, said he and his client were “disappointed the court didn't take up the issue of the disparity between legal malpractice that's a tort versus legal malpractice that's a breach of contract.”

“Our position has always been that all legal engagements are, by definition, contracts,” Haines added.