The Pennsylvania Superior Court has reinstated a legal malpractice case against an estate attorney who was accused of negligence in handling a real estate sale, noting that the alleged malpractice was due in part to the lawyer's failure to have face-to-face contact with his client for years.

In a Feb. 10 unpublished memorandum, a three-judge panel consisting of Judges Mary Jane Bowes, Jacqueline Shogan and Eugene Strassburger reversed a Montgomery County trial judge's grant of summary judgment in favor of defendant Alan Silverman of Gold, Silverman, Goldenberg & Binder.

Amy Klein and Wendy Beck, daughters of the deceased Edgar Waite, who died of Alzheimer's disease in 2013, argued that Silverman's advice to sell commercial properties to pay for Waite's medical care deprived them of money because it required them to pay capital gains tax on the sales, which could have been avoided if they had waited to sell the properties until after Waite died two months later.

The trial court held that Silverman's negligence was not the proximate cause of the plaintiffs' injuries.

"In Ma[y] 2013 when the properties were sold, no one knew that Waite would live for only [two] more months," the trial court said, according to Strassburger. "There is no suggestion that [attorney] Silverman knew that Waite would pass away soon after the sale of the properties, so as to hold him liable for failing to advise the Waites that they could forego a substantial capital gains tax if they held the property until after Waite's death. There is also no suggestion that [attorney] Silverman knew that Mrs. Waite would live a mere eight months after [Waite]."

However, Strassburger disagreed with the trial court's reasoning. Strassburger noted that Silverman was Waite's attorney for over 40 years but had not made face-to-face contact with him since the mid-to-late 1990s.

"It was attorney Silverman's understanding that Waite was becoming 'frail.' Attorney Silverman did not inquire into the current financial position of the parties nor apprise Mrs. Waite of the tax implications associated with the sale of the commercial properties during Waite's lifetime," although he knew the family was having trouble paying the care bills, Strassburger said.

"We observe that there are genuine issues of material fact as to what, as Waite's lawyer, attorney Silverman was obligated to do, and what he did do: (1) to review his client's finances; and (2) to inform his client about the tax implications before advising the client whether it would be prudent to sell the commercial properties," Strassburger said. "Attorney Silverman advised Mrs. Waite to sell the properties. However, this advice was offered with little or no inquiry into the Waites' finances and without informing Mrs. Waite of the tax implications associated with the sale of these properties during Waite's lifetime. Based upon the foregoing, we conclude that the trial court erred in granting summary judgment to appellees."

Silverman is represented by Gerald Dugan of Dugan Brinkmann Maginnis and Pace. "The two plaintiffs of the case, daughters of Edgar Waite, inherited a staggering amount of money when he died. Then they sued Alan Silverman because they wanted more money."

Margaret Phiambolis represents the plaintiffs and declined to comment beyond what was laid out in the plaintiffs' appellate brief.