J-A24037-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37 DANIEL ZELIKOVICH : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : WOOD & FLODGE, AND : No. 2975 EDA 2023 CHRISTOPHER H. STEWARD : Appeal from the Judgment Entered November 13, 2023 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): 200601802 BEFORE: LAZARUS, P.J., KING, J., and LANE, J.

MEMORANDUM BY LANE, J.: FILED APRIL 11, 2025 In this legal malpractice action, Daniel Zelikovich (“Husband”) 1 appeals from the judgment entered upon a jury verdict in favor of Christopher H.

Steward (“Attorney Steward”) and Wood & Flodge (collectively, “the Defendants”). We affirm.

By way of background, we first summarize that in December 2014, Husband and Wife, then married, executed a postnuptial agreement, prepared by attorney Defendants. In April 2015, Husband commenced a divorce action.

On June 28, 2016, the Bucks County Court of Common Pleas, Family Division (“Family Court”), issued an order, finding the postnuptial agreement was ____________________________________________

Nevertheless, as this legal malpractice action pertains to their divorce action, and they have the same last name, we refer to them as “Husband” and “Wife” for ease of discussion.

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unenforceable. Almost three years later, in May 2019, Husband “received the master’s recommendation, where he learned that [W]ife would receive over $1 million more than she would have received” under the postnuptial agreement. Second Amended Civil Action Complaint, 3/2/21, at ¶ 22 (unnecessary capitalization omitted). Husband ultimately settled the division of the marital estate “for amounts consistent with the master’s recommendation.” Id. at ¶ 23. We note that in the instant trial proceedings, the Defendants maintained that the Family Court did not provide a reason for finding the postnuptial agreement unenforceable. See N.T. Jury Trial, 6/7/23, at 40.

On June 29, 2020, Husband commenced the underlying legal malpractice action against the Defendants, raising three counts: negligence, breach of fiduciary duty, and breach of contract. Husband alleged: (1) in the divorce proceedings, Wife claimed “she was misled[ and] bullied, and did not enter into the agreement voluntarily;” and (2) Wife also claimed she did not receive consideration for the agreement, and Attorney “Steward failed to make clear within the agreement that” she in fact did. Second Amended Civil Action Complaint, 3/2/21, at ¶¶ 12-13. Husband averred that but for the “Defendants’ negligent drafting of the [postnuptial] agreement, and failure to advise [Husband and Wife] to obtain independent counsel, the postnuptial agreement would have been enforceable.” Id. at ¶ 20.

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The Defendants filed a motion for judgment on the pleadings, invoking, inter alia, the statutes of limitations. In December 2021, the trial court granted the motion in part and denied it in part. First, the court found the negligence and breach of fiduciary duty claims were barred by the two-year statute of limitations, where the latest date the statute of limitations could have begun to run was June 29, 2016, when Husband’s counsel received the Family Court’s order invalidating the postnuptial agreement. However, the court found Husband’s breach of contract claim was timely under the four- year statute of limitations, and thus permitted that count to proceed.

In May 2023, the Defendants filed a motion in limine to exclude Husband’s legal expert witness from testifying about damages. The trial court conducted a hearing on June 1, 2023 — five days before trial was to begin — and granted the motion. The following day, Plaintiff took his expert witness’ deposition “by video and, heeding the court’s ruling, did not ask [her] opinion on [his] compensatory damages.” Trial Court Opinion, 1/25/24, at 2. On June 5, 2023, however, the trial court informed the parties, via email, that it was reconsidering its ruling and invited the parties to file briefs. At some point, not clear from the record, the trial court reversed its initial order, thus allowing Husband to present expert evidence relating to compensatory damages. A jury trial commenced the following day, June 6, 2023. Husband did not present any additional testimony by his expert witness.

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Next, we summarize that in opening argument to the jury, the Defendants’ counsel stated that in the Family Court proceedings: (1) Wife testified that Husband “bullied” her and threatened to leave her if she did not sign the postnuptial agreement; (2) Wife’s father testified that Husband was a “puppet master,” was controlling, and “secluded” Wife from her family, prohibiting them from seeing Wife or their grandchildren; and (3) Wife’s daughter — Husband’s stepdaughter — testified that she and Husband had arguments, “he threw a baby bottle at her,” and told her to leave the house.

N.T. Jury Trial, 6/6/23, at 29-30. At a “lunch recess” later that day, Husband argued that defense counsel’s statements, as to what Wife’s father and daughter testified, were hearsay.2 See id. at 91. Defense counsel replied that a statement under oath was not hearsay, and in any event, the statements were not “offered for the truth of the matter,” but rather “to point out . . . what the [Family Court] heard.” Id. at 91-92.

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We note the Defendants’ opening argument spanned pages twenty through thirty-five of the June 6, 2023 trial transcript. On page ninety of the same transcript, Husband raised his objection to the opening argument. The Defendants responded to the merits, but did not challenge the timing of it.

The jury trial spanned three days. Against the particular circumstances in this case, we decline to find Husband’s objection was so untimely as to constitute waiver.

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The trial court observed, “[I]t looks an awful lot like hearsay,” and warned the Defendants’ counsel, “At the conclusion of this trial, if I am not satisfied that [you have done what you state you will do], I will [consider] a curative instruction on this point.” Id. at 92. Shortly thereafter, before the jury returned to the courtroom, Husband raised this hearsay issue again and moved for a mistrial. See id. at 104-05. The trial court denied it.

Thereafter, during Wife’s direct examination, the Defendants asked whether her father and daughter testified in the Family Court proceedings.

Wife responded that they had, but before the Defendants’ next question, Husband raised a hearsay objection. The trial court sustained it, and the Defendants moved on to other questioning. See N.T., 6/7/23, at 39-40. We further note that in its final jury charge, the trial court instructed the jury that: (1) the lawyers were not witnesses and their statements were not evidence in this case; and (2) the jury could consider testimony given by Husband and Wife at the Family Court hearing, but not by any other person at that hearing.

See N.T. Jury Trial, 6/8/23, at 23-24.

Husband testified in his case in chief. The Defendants called Wife as their witness. Husband cross-examined her, and asked, inter alia: (1) whether she was “already looking for other places to live” in December 2014, when they executed the postnuptial agreement; (2) whether Wife had previously testified that Attorney Steward was not truthful with her; and (3) whether Attorney Steward told her that she could not “waive child support in

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the” postnuptial agreement. N.T., 6/7/23, at 42, 48, 49. The Defendants objected, arguing these question exceeded the scope of Wife’s direct examination. Husband responded, pertinently, that Wife’s direct examination testimony was “intended to show duress,” and he sought to ask “what her intentions were when she [entered] into the” postnuptial agreement. Id. at 43. The trial court disagreed and sustained each of the Defendants’ objections.

At the conclusion of trial, the jury found the Defendants breached their contract with Husband. However, it found the breach of contract was not a cause of damages to Husband. Thus, pursuant to the verdict slip instructions, the jury did not reach the issue of the amount of damages to award Husband.

Husband filed a post-trial motion, addressing each of the issues summarized above: (1) the dismissal of his negligence and breach of fiduciary duty claims under the statute of limitations; (2) the preclusion of testimony, by his expert witness, regarding damages; (3) the Defendants’ opening argument references to alleged hearsay; and (4) the limiting of his cross- examination of Wife. The trial court conducted a hearing and denied the post- trial motion. On November 13, 2023, the court entered judgment in favor of the Defendants. Husband filed a timely notice of appeal, and both he and the trial court have complied with Pa.R.A.P. 1925.

Husband presents four issues for our review: 1. Did the Trial Court err by granting, in part, [the Defendants’] Motion for Judgment on the Pleadings thereby dismissing Count -6- J-A24037-24

I (Negligence) and Count III (Breach of Fiduciary Duty) of [Husband’s] Second Amended Complaint?

2. Did the Trial Court err by denying [Husband’s] motion for a mistrial after [the Defendants] made references to hearsay testimony from the Family Court proceedings challenging the underlying post-nuptial agreement?

3. Did the Trial Court err by limiting [Husband’s] cross- examination of witness [Wife]?

4. Did the Trial Court err by granting [the Defendants’] motion in limine limiting [Husband’s] legal expert testimony regarding damages?

Husband’s Brief at 4 (unnecessary capitalization omitted and issues reordered for ease of discussion).

In his first issue, Husband challenges the dismissal, under the statute of limitations, of his claims of negligence and breach of fiduciary duty. We consider the applicable standard of review: When reviewing whether a trial court properly granted a motion for judgment on the pleadings, this Court’s standard of review is plenary and we apply the same standard used by the trial court.

The trial court must confine its consideration to the pleadings and relevant documents and must accept as true all well-pleaded statements of fact. A motion for judgment on the pleadings will only be granted where, based upon the pleadings and properly attached documents, there exists no material issues of fact and the moving party is entitled to judgment as a matter of law.

Hoopes v. Hadley, 315 A.3d 844, 847 (Pa. Super. 2024) (citations omitted).

“We will affirm the grant of [a motion for judgment on the pleadings] only when the moving party’s right to succeed is certain and the case is so free from doubt that the trial would clearly be a fruitless exercise.” Wachovia

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Bank, N.A. v. Ferretti, 935 A.2d 565, 570 (Pa. Super. 2007) (citations omitted).

This Court has stated: “[A]n action for legal malpractice may be brought in either contract or tort.” . . . With regard to a breach of contract claim, “an attorney who agrees for a fee to represent a client is by implication agreeing to provide that client with professional services consistent with those expected of the profession at large.” Id. at 570-71 (citations omitted).

An action sounding in negligence “must be commenced within two years.” 42 Pa.C.S.A. § 5524(2); see also Mariner Chestnut Partners, L.P. v. Lenfest, 152 A.3d 265, 277 (Pa. Super. 2016) (stating two-year statute of limitations applies to claim of breach of fiduciary duty).

[T]he trigger for the accrual of a legal malpractice action, for statute of limitations purposes, is not the realization of actual loss, but the occurrence of a breach of duty. . . .

. . . Under the occurrence rule, the statutory period commences upon the happening of the alleged breach of duty.

An exception to this rule is the equitable discovery rule which will be applied when the injured party is unable, despite the exercise of due diligence, to know of the injury or its cause. . . .

Pennsylvania favors strict application of the statutes of limitation.

Accordingly, the statute of limitations in a legal malpractice claim begins to run when the attorney breaches his or her duty, and is tolled only when the client, despite the exercise of due diligence, cannot discover the injury or its cause.

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Wachovia Bank, N.A., 935 A.2d at 572-73 (citations and emphasis omitted, and paragraph break added). “This Court has held that the determination of when the statute of limitations has run on a claim for legal malpractice is usually a question of law for the trial judge, unless the issue involves a factual determination.” O’Kelly v. Dawson, 62 A.3d 414, 419 (Pa. Super. 2013) (citation omitted).

On appeal, Husband asserts the trial court erred in finding the two-year statute of limitations, for his negligence and breach of fiduciary duty claims, began to run on June 29, 2016, when his attorney received the Family Court’s order invalidating the postnuptial agreement. Instead, Husband asserts, his injury did not become “a reality” until May 2019, when he received notice of the master’s recommendation and “learned for the first time that [Wife] would receive . . . $1 million [more than] what she would have received had the postnuptial agreement been enforced.”3 Husband’s Brief at 37-38 (some punctuation omitted). Husband maintains he “had no way of knowing that he was aggrieved by [the Defendants’] negligence and breach of fiduciary duty until [he] knew he would have to pay” more than the postnuptial agreement’s terms, and he “had no way of proving any damages until the master’s recommendation.” Id. at 37, 39 (unnecessary capitalization omitted).

Husband reasons that had he commenced the underlying legal malpractice

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suit within two years of the Family Court’s June 2016 order: (1) the Defendants could have correctly argued that he failed to state an actionable claim because he had not yet suffered damages; and thus (2) this “lawsuit would have been dismissed.” Id. at 40. Finally, Husband contends there were “genuine issues of material fact [that he] did not know if and to what extent he had suffered damages until May 2019.” Id. at 40.

After review of the record, the parties’ briefs, the applicable law, and the well-reasoned opinion of the trial court, we conclude Husband is not entitled to relief. The trial court opinion aptly applies the law set forth above and properly addresses and disposes of his claim. See Trial Court Opinion, 1/25/24, at 9-11 (finding: (1) under the “occurrence rule,” Husband’s “negligence and breach of fiduciary duty causes of action accrued when [the] Defendants rendered their legal services to” Husband and Wife in 2014; (2) but application of the “discovery rule” was appropriate in this legal malpractice action “because the invalidity of a postnuptial agreement would not be immediately apparent to a layperson;” (3) the latest date that the statute of limitations could possibly begin to run was June 29, 2016, when Husband’s counsel received the Family Court order invalidating the postnuptial agreement; (4) Husband “cannot plausibly claim that he did not yet possess sufficient critical facts to be charged with notice that a wrong had been committed and that he may be entitled to redress [upon notification that] the agreement drafted by [the] Defendants [was] legally unenforceable;” and (5)

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where Husband commenced this suit on June 29, 2020, the two-year statute of limitations barred his negligence and breach of fiduciary duty claims).

Accordingly, we affirm on the basis of the trial court’s opinion. We agree with the trial court that based upon the pleadings, there were no material issues of fact and the Defendants were entitled to judgment as a matter of law. See Hoopes, 315 A.3d at 847. Thus, no relief is due on Husband’s first issue.

In his second issue, Husband asserts the trial court erred in denying a mistrial, based upon the Defendants’ references to hearsay. We reiterate that in its opening argument, defense counsel stated that in the Family Court proceedings, Wife’s father and daughter testified that Husband had controlling behavior. This Court has stated: The grant of a new trial because of counsel’s improper remarks is within the discretion of the trial court. If the trial court determines that instructions to the jury to disregard the remarks are sufficient, an appellate court should be “reluctant to reverse since the trial judge is in a better position to see and understand the atmosphere of the trial and the effect the statement had on the jury.” Whether the trial court abused its discretion in denying a new trial will be determined by “an examination of the remark made, the circumstances under which it was made and the precautions taken by court and counsel to remove its prejudicial effects.”

Hill v. Reynolds, 557 A.2d 759, 765-66 (Pa. Super. 1989) (citations omitted).

We note that when reviewing an attorney’s opening statements at trial: It is improper for counsel to present facts to the jury which are not in evidence and which are prejudicial to the opposing party; counsel may not comment on evidence to the effect that it removes an issue of credibility from the jury. Further, - 11 - J-A24037-24

whether remarks by counsel warrant a new trial requires a determination based upon an assessment of the circumstances under which the statements were made and the precaution taken by the court and counsel to prevent such remarks from having a prejudicial effect. It is the duty of the trial judge to take affirmative steps to attempt to cure harm, once an offensive remark has been objected to. However, there are certain instances where the comments of counsel are so offensive or egregious that no curative instruction can adequately obliterate the taint.

Young v. Washington Hospital, 761 A.2d 559, 561-62 (Pa. Super. 2000) (citations omitted).

The Pennsylvania Rules of Evidence define “hearsay” as a statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement.

Pa.R.E. 801(c)(1)-(2). Generally, hearsay is not admissible. See Pa.R.E. 802.

Finally, we note: “The law presumes that the jury will follow the instructions of the court.” Brown v. Halpern, 202 A.3d 687, 707 (Pa. Super. 2019).

On appeal, Husband contends that in the Defendants’ opening argument, defense counsel, “with no intention of calling [Wife’s father or daughter] to testify subject to cross-examination at trial,” made “repeated references to highly inflammatory hearsay testimony presented during the Family Court proceeding . . . namely, that [Husband] was a ‘puppet master’ who bullied [Wife], secluded her and her grandchildren from her family, - 12 - J-A24037-24

argued with [Wife’s] daughter . . . , threw a baby bottle at her, and kicked her out of the house.” Husband’s Brief at 30-31. Husband recounts that the trial court “admonished counsel” that “it look[ed] an awful lot like hearsay.” Id. at 31. However, Husband maintains, defense counsel “doubled down by raising the inflammatory hearsay . . . again during [Wife’s] direct examination.” Id. Husband acknowledges the trial court sustained his objection to this questioning, but argues the court should have given — but failed to give — “a prompt and specific instruction to the jury to disregard any references to whether [Wife’s] father and daughter testified at the Family Court proceeding.” Id. at 31-32. Husband further claims that the Defendants’ “repeated violation of the trial court’s order” amounted to “extraordinary circumstance[s],” not “alleviated by the trial court’s belated, benign and ambiguous instruction at the close of the case.” Id. at 32-33. Husband concludes the trial court’s actions allowed “the jury to find that although [the Defendants] breached the contract, [he] was the ‘puppet master’ and cause of his own damages.” Id. at 24, 29. Husband avers he is entitled to a new trial.4

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The trial court addressed Husband’s claim as follows. Following Husband’s objection to the Defendants’ opening argument, the trial court ruled that any further statements substantiating the Family Court testimony of persons other than [Husband and Wife] would be ruled inadmissible, and subject to corrective instruction.

During [the] Defendants’ case in chief, the court permitted [Wife] to testify as to her own Family Court testimony[, but] sustained [Husband’s] objection when she was asked whether her father and daughter testified on her behalf.

When charging the jury, the court instructed the jurors that they “may consider testimony provided by [Husband and Wife] [from the Family Court hearing,” [but] they “may not consider the testimony of any other person who may have appeared at that hearing. Given the absence of extraordinary circumstances, a curative instruction was adequate to cure any prejudice to [Husband]. The jury is presumed to have heeded the instruction.

The references to the Family Court testimony did not prejudice [Husband] or warrant a mistrial.

Trial Court Opinion, 1/25/24, at 8 (citations omitted and paragraph break added).

We address Husband’s various claims seriatim. First, we disagree with his premise — that the Defendants’ statements in opening argument met the definition of hearsay. It is clear that the Defendants’ attorney did not offer his own opening argument statements into evidence. See Pa.R.E. 801(c)(2) (defining hearsay, in part, as a statement that “a party offers in evidence to prove the truth of the matter asserted in the statement”); see also N.T., 6/8/23, at 23 (trial court instructing, in final jury charge: “The lawyers are not witnesses and what they say is not evidence in the case. Their opening

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statements, . . . arguments, . . . questions, . . . comments, closing arguments, none of that is evidence”).

Nevertheless, we construe Husband to be challenging defense counsel’s alleged improper comments, and find no abuse of discretion. See Hill, 557 A.2d at 765-66. We agree with the trial court that its jury instruction ameliorated any prejudice caused by the Defendants’ counsel’s statements, and we presume the jury followed the instruction. See Young, 761 A.2d at 561-62; see also Brown, 202 A.3d at 707. We reject Husband’s claim that the statements were so inflammatory as to cause extraordinary circumstances warranting a new trial. Instead, when considered against the voluminous testimony and arguments over the three-day jury trial, the attorney’s statements were not “so offensive or egregious that no curative instruction can adequately obliterate the taint.” Young, 761 A.2d at 561-62.

Next, we determine no relief is due on Husband’s claims concerning the Defendants’ direct examination of Wife. The Defendants asked Wife about the testimony she gave in Family Court, as permitted by the trial court. The following exchange then occurred: [Defendants’ counsel: Y]our father also testified at the [Family Court] hearing[,] didn’t he?

[Wife:] Yes, he did.

Q. All right. And your daughter also testified at the hearing, correct?

A. Yes.

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Q. And she testified on your behalf.

A. Yes.

Q. In any effort to invalidate — N.T., 6/7/23, at 38.

At this juncture, Husband objected on hearsay grounds. We emphasize, and Husband acknowledges, that the trial court sustained his hearsay objection. See id. at 39. As the court ruled in his favor, before Wife responded to the questions, we disagree that he is entitled to any relief in this regard.

Finally, to the extent that Husband challenges the sufficiency or timeliness of the trial court’s jury instruction, we conclude he has waived such an issue, as he did not raise an objection before the trial court. See Morrissey v. St. Joseph’s Preparatory School, 323 A.3d 792, 804 (Pa. Super. 2024) (stating that “to preserve a jury-instruction challenge for appeal — absent a specific contemporaneous objection — a litigant must file a proposed point for charge, and the trial court must explicitly accept or reject the proposed instruction”); see also N.T., 6/8/23, at 14 (trial court stating during charging conference, without objection from Husband, that it would instruct the jury it could consider Family Court testimony given by Husband and Wife, but not by any other person at that hearing), 42 (neither party raising any objection at the conclusion of the jury charge). For the foregoing reasons, we conclude no relief is due on Husband’s second issue.

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In his third issue, Husband avers the trial court erred in limiting his cross-examination of Wife. This Court has explained: The scope of cross-examination is within the sound discretion of the trial court, and we reverse only for an abuse of discretion. In exercising this discretion, the trial court may limit cross- examination due to concerns that the matter is collateral, would likely confuse or mislead the jury, or would waste time.

Kimble v. Laser Spine Institute, LLC, 264 A.3d 782, 797 (Pa. Super. 2021) (en banc) (citations omitted). Additionally: The admissibility of evidence is within the sound discretion of the trial court, and we will not overturn its decisions in this regard absent an abuse of discretion or misapplication of law. We also do not reverse such a ruling unless the objecting party sustained prejudice. “An abuse of discretion is not merely an error of judgment. It requires a showing of manifest unreasonableness, partiality, ill will, or such lack of support as to be clearly erroneous.

Under this standard, the party challenging the trial court’s discretion on appeal bears a heavy burden.”

Id. at 795 (citations omitted).

Pennsylvania Rule of Evidence 611(b) provides: “Cross-examination of a witness other than a party in a civil case should be limited to the subject matter of the direct examination and matters affecting credibility, however, the court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination. . . .” Pa.R.E. 611(b).

First, Husband asserts the trial court erred in finding Wife’s direct examination “was limited to what happened at the meetings with [him] and [Attorney] Steward in December 2014 and at the Family Court proceeding.”

Husband’s Brief at 27. Instead, Husband insists, the Defendants asked Wife

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questions, which “elicited and implied” that the “Family Court invalidated the postnuptial agreement” because Wife signed it under duress from him, and not because of the Defendants’ “legal malpractice.” Id. (some punctuation omitted). Husband thus denies that his questions exceeded the scope of direct examination. Husband avers the trial court’s ruling prejudiced him, “by allowing the jury to hear evidence that the postnuptial agreement was invalidated due to [his] bullying[,] without affording [him] the opportunity to cross-examine his accuser.”5 Id. at 25 (some punctuation omitted).

In addressing Husband’s issues, the trial court first summarized: During trial, [Wife] was asked on direct examination by [the] Defendants’ counsel about any meetings she had with [Attorney] Steward in his capacity as an attorney prior to December 2014, [when Husband and Wife executed the ____________________________________________

We determine Husband has waived both these discrete claims — concerning Wife’s credibility and her awareness of the substance of the postnuptial agreement — as he did not raise them before the trial court. See N.T., 6/7/23, at 43 (Husband’s counsel arguing, in response to the Defendants’ objection that his questions exceeded the scope of cross- examination, that “the entire testimony is intended to show duress [sic]” and “this goes directly to what [Wife’s] intentions were when she was entering into the” postnuptial agreement). See also Pa.R.A.P. 302(a) (providing that “[i]ssues not raised in the trial court are waived and cannot be raised for the first time on appeal”); Morrissey, 323 A.3d at 805 n.9 (stating that “[a] new and different theory of relief may not be successfully advanced for the first time on appeal”).

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postnuptial agreement,] the character of the meetings she had with [Attorney] Steward regarding the postnuptial agreement, and the 2016 Family Court hearing.

On cross-examination, [Husband] asked: 1) whether it was true that by December 2014, she was already looking for places to live; 2) whether she previously testified that [Attorney] Steward was truthful with her during the meetings; and 3) whether [Attorney] Steward told her that she could not waive child-support in the agreement. . . .

Trial Court Opinion, 1/25/24, at 6 (citations omitted and paragraph break added).

The trial court considered Husband’s arguments that his cross- examination questions: (1) “were meant to ‘undercut the false narrative[,] elicited during . . . direct examination[,] that [Wife] entered into the post- nuptial agreement under duress or to save her marriage;’” and (2) went “directly to what [Wife’s] intentions were when she was entering into the” postnuptial agreement. Id. (citation omitted). The court found: Although [the] Defendants . . . asked [Wife] whether she showed distress in front of [Attorney] Steward during their . . . meeting, she was not asked about her subjective beliefs about signing the agreement. [The] Defendants’ direct examination did not concern [Wife’s] intentions. [She] was asked about the character of her meetings with [Attorney] Steward, and the 2016 Family Court hearing. Her testimony was limited to what she expressed to [Attorney] Steward, not what she may have felt or believed about signing the agreement. . . .

Id. at 6-7 (citations omitted).

After careful review of the record, we determine the trial court did not abuse its discretion in finding the above questions to Wife exceeded the scope of direct. See Kimble, 264 A.3d at 797. First, we conclude the trial court - 19 - J-A24037-24

properly summarized the scope of Wife’s direct examination — which we note spanned seventeen pages of trial testimony. 6 On appeal, Husband does not identify his particular questions, posed to Wife, ruled by the trial court to have exceeded the scope of direct. We reiterate that they were: (1) whether Wife was “already looking for other places to live” in December 2014; (2) whether Wife had previously testified that Attorney Steward was not truthful with her; and (3) whether Attorney Steward told her that she could not “waive child support in the” postnuptial agreement. N.T., 6/7/23, at 42, 48, 49.

Even in accepting Husband’s premise that Wife’s direct examination pertained to whether she signed the postnuptial agreement under duress,

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On direct examination, Wife also testified that she previously testified, at the Family Court hearing, to the following: (1) Husband had told her that if she did not sign the postnuptial agreement, there would be no marriage; and (2) at that time, her “priority was not the finances, [but rather] to save [the] marriage.” Id. at 37-38. Finally, at this trial, Wife testified that the Family Court did not provide a reason for invalidating the postnuptial agreement.

See id. at 40.

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Husband does fails to explain how each of his above questions related to whether Wife signed the postnuptial agreement under duress. Again, he does not even identify the particular questions he now argues the trial court should have permitted. In the absence of discussion of these particular questions, we conclude no relief is due on Husband’s third issue. See also Pa.R.A.P. 2119(a) (providing that appellant’s argument shall include “such discussion and citation of authorities as are deemed pertinent”).

In his final issue, Husband avers the trial court erred in “granting [the] Defendants’ motion in limine limiting [his] legal expert testimony regarding damages.” Husband’s Brief at 34. In support, he first argues the trial court granted the motion “under the mistaken belief that Pennsylvania law limited damages in a malpractice case to underlying legal fees.” Husband’s Brief at 35. Husband maintains that instead, “[c]onsequential damages are appropriate in a breach of contract case.” Id. Next, Husband acknowledges that the trial court subsequently reversed its ruling, permitting him to present a calculation of compensatory damages. However, Husband insists, “by then, the damage had been done because [the legal expert’s] testimony was already prerecorded in accordance with the trial court’s ruling,” and he “could not recall [her] to re-testify at trial, [as] she had already testified.” Id. at 36.

Husband alleges he could not present evidence in support of his claim for damages.

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In denying relief on this issue, the trial court reiterated that on the verdict slip, the jury found: (1) the Defendants breached the contract with Husband; (2) but the breach was not a cause of damages to Husband; and thus (3) the jury did not reach the issue of the amount of damages to award Husband. The court found Husband did not suffer prejudice, as the expert’s excluded testimony pertained to an issue not reached by the jury. The court stated: “The excluded testimony would have concerned whether [his] damages included compensatory damages other than . . . legal fees, such as what he would have received had the postnuptial agreement been enforced.”

Trial Court Opinion, 1/25/24, at 9. Accordingly, the court concluded, any “exclusion of the testimony was not material to the outcome of the case.” Id. We agree with the trial court’s analysis, and similarly conclude that because the jury found no causation, it did not reach the issue — the amount of damages to award — that was the subject of the excluded expert testimony.

Thus, any evidence concerning the nature or amount of damages was not material to the outcome of the case.

Furthermore, we conclude no relief is due on Husband’s claim that the trial court’s reversal of its ruling was untimely — because “by then, the damage had been done because [his expert’s] testimony was already

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prerecorded in accordance with the trial court’s [initial] ruling.” 7 Husband’s Brief at 36 (unnecessary capitalization omitted). The Defendants respond that Husband “chose to videotape his expert’s testimony before trial in lieu of having her testify live at trial.” Defendants’ Brief at 33. Additionally, the Defendants reason that after the trial court reversed its ruling, Husband “chose to neither call [the expert witness] in person to testify during his case in-chief nor recall her in rebuttal. . . . As a result, any alleged prejudice was caused solely by [Husband’s] own trial tactics.” Id. In his reply brief, Husband dismisses the Defendants’ above observations as “nonsense.” Husband’s Reply Brief at 9. He insists, without citation to legal authority, that his expert “had already testified,” and the fact that her “videotaped testimony had not been played for the jury does not mean that [she] had not already provided her sworn testimony.” Id.

____________________________________________

Meanwhile, we observe the certified record does not include the trial court’s order reversing its motion in limine ruling, to permit expert testimony concerning damages. Neither the parties nor the trial court explain how the ruling was announced to the parties, given the short time period between: the court’s June 5, 2023 email stating it was reconsidering its order; and the June 6, 2023 commencement of trial. Thus, we cannot review whether, for example, Husband argued he was not able to call his expert to testify at trial, or requested additional time to prepare for trial in light of the trial court’s ruling. In any event, Husband makes no claim on appeal that he did.

- 23 - J-A24037-24

Husband’s arguments do not merit relief. Again, he cites no legal authority for the proposition that once a pre-trial deposition has been videotaped, a party may not obtain additional testimony from that witness for trial. See Pa.R.A.P. 2119(a). Additionally, we disagree with his premise that his expert had in fact “already testified” at trial, and he “could not recall [her] to re-testify.” Husband’s Brief at 36. The fact that the expert witness gave “sworn testimony” in a pre-trial deposition, regardless of whether Husband subsequently played the video of her deposition at trial, does not mean the expert in fact ‘testified” at a trial that had not yet commenced. Husband’s Reply Brief at 9. Instead, Husband merely presented the videotaped deposition as an exhibit. Accordingly, we conclude no relief is due on Husband’s fourth issue.

For the foregoing reasons, we affirm the judgment entered upon the jury’s verdict in favor of the Defendants. As we adopt part of the trial court’s opinion in disposing of this appeal, we direct that in the event of further proceedings, the parties shall attach a copy of the Honorable Ann M. Butchart’s January 25, 2024, trial court opinion to any filings of this memorandum.

Judgment affirmed.

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Date: 4/11/2025

- 25 - Circulated Circulated 03/28/2025 03/28/202504:15 04: 15 PM PM

IN INTHE THE COURT COURT OF OF COMMON 4 PIL D A PLEAS.OF'jjrLkpijjfr COMMON PLEAS aOF H A EL A COUNTY BOUNTY FIRST FIRST JUDICIAL DISTRICTOF JUDICIAL DISTRICT OF PENNSYLVANIA PENNSYLVANIA CIVIL CIVIL TRIAL TRIAL DIVISIONI' DIVISION. 72L 1, P; 1-!: VH F.1, -1 , DANIEL DANIEL ZELIKOVICH ZELIKOVICH Plaintiff, Superior Plaintiff, Superior Court; Court, ; [) v. V. 2975 2975 EDA EDA.202S_ 2023. > u CHRISTOPHER CHRISTOPHER H. H. STEWARD, STEWARD, Trial Trial Court Court Docket: Docket: ESQUIRE, ESQUIRE, et et al al June June Term, Term, 2020 2020 Defendants. No. Defendants. No. 01802 01802

OPINION OPINION BUTCHART, BUTCHART, J.J. January January 24, 24, 2024 2024

Daniel Daniel Zelikovich Zelikovich ("Plaintiff') ("Plaintiff) appeals appeals this this court's court's June June 9, 9, 2023 2023 Order Order entering enteringjudgment judgment in in favor favor of ofChristopher Christopher H.

H. Steward, Steward, Esquire Esquire and and Wood & Floge Wood & Floge ("Defendants"), ("Defendants), and and against against Plaintiff, Plaintiff, upon upon the the conclusion conclusion of of a a four-day four-day jury jury trial. trial.

Plaintiff Plaintiff asserts inter alia asserts inter alia that that the the court court erred erred in in denying denying Plaintiff's Plaintiffs Motion Motion for for Vacatur/Striking/Opening/Removal Vacatur/Striking/Opening/Removal ofthe the Trial Trial Verdict Verdict and and Requesting Requesting a a New New Trial; Trial; in in limiting limiting the the cross-examination cross-examination of of Plaintiff's Plaintiffs ex-wife, ex-wife, Irina Irina Zelikovich; Zelikovich; in in denying denying Plaintiff's Plaintiffs motion motion for for a a mistrial mistrial based based on on the the introduction introduction of of inadmissible inadmissible hearsay; hearsay; in in limiting limiting the the testimony testimony of of Plaintiff's Plaintiffs legal legal expert, expert, Toni Toni Lee Lee Cavanaugh; Cavanaugh; and and in in granting, granting, in in part, part, Defendants' Defendants' Motion Motion for for Judgment Judgment on on the the Pleadings thereby dismissing Count Count I (Negligence) (Negligence) and Count II II (Breach (Breach of Fiduciary Fiduciary Duty) Duty) from from Plaintiff PlaintiffssSecond Amended Complaint. ' OPFLD - Zelikovich Vs Wood OPFLD-Zelikovich Plaintiff Plaintiffssclaims are without merit for the reasons stated below.

I. PROCEDURAL HISTORY and FACTS • III II Ill1111111 IIIIIIII II I I IIIII I 20060180200178 20060180200178 VII VIII I I 1111111111111111

Plaintiff commenced this civil action on June 29, 2020. Plaintiff alleged professional malpractice, negligence, breach of contract, and breach of fiduciary duty stemming from

Defendants' Defendants' joint joint representation of Plaintiff representation of Plaintiff and and his his ex-wife, Irina Zelikovich ex-wife, Irina Zelikovich ("Ms. (Ms. Zelikovich"), in the Zelikovich"), in the December December 2014 2014 execution execution of of a apostnuptial postnuptial agreement agreement prepared Defendant prepared by Defendant Christopher H.

Christopher Steward ("Defendant H. Steward Steward"). PI's ("Defendant Steward"). Pl.'s Second Second Am.

Am. Civil Civil Action Compl. at Action Compl. at 113, 3, 20, 24-27.

20, 24-27. In June 2016, 2016, the the Court of Common Pleas of Bucks County, Family Division Division ("Family Court"), ("Family Court"), found found the the underlying postnuptial agreement unenforceable. underlying postnuptial at ¶ 16. unenforceable. Id. at 16.

Defendants Defendants filed aaMotion for Judgment Judgment on the Pleadings Pleadings on July 21, 2021, arguing for dismissal of all three counts in Plaintiff's Second Amended Complaint pursuant to Pa R. Civ. P. 1034 because because they they were barred by the applicable applicable statutes of limitation. Defs.' Mot. for J. on the Pleadings Pleadings at at¶ 19, 19. On December 21, 21, 2021, the court granted Defendants' motion as to Counts I I (Negligence) (Negligence) and II (Breach (Breach of Fiduciary Fiduciary Duty), Duty), but not as to Count III (Breach of Contract).' Defendants filed three motions in limine in May 2023.

2023? The court granted, in part, Defendants' Defendants' motion to preclude preclude the testimony testimony of Plaintiff's legal expert, Toni Lee Cavanaugh, holding holding Ms. Cavanaugh's proposed Ms. Cavanaugh's testimony regarding proposed testimony regarding the the calculation calculation of of Plaintiff s damages Plaintiff's damages inadmissible. inadmissible. Pl.'s PI's Mot.

Mot. for Vacatur/Striking/Opening/Removal Vacatur/Striking/Opening/'Removal of the the Trial Verdict Verdict and Requesting Requesting aaNew Trial at at ¶ 21. Plaintiff took Ms. Cavanaugh's deposition before trial by video and, heeding and, heeding the the Court's Court's ruling, ruling, did not ask did not ask Ms. Cavanaugh to Ms. Cavanaugh to offer offer her her opinion opinion on on Plaintiff's Plaintiffs compensatory damages. [d. compensatory damages. Id. at at 123. The Court 23. The Court ultimately reconsidered and ultimately reconsidered and allowed allowed Plaintiff's Plaintiff's compensatory damages compensatory damages to to be be presented presented to the the jury jury,,but, but, because because Ms. 3Ms. Cavanaugh's Cavanaugh's testimony testimony

' This pre-trial pre-trial ruling ruling was made by by the Honorable Judge Stella Tsai on December 21, 2021. Pa.R.A.P. Rule 202L. Pa.R.A.P. Rule 1925(a) requires requires appeals appeals to be served upon upon the judge judge who issued the order complained of on appeal, which Plaintiff has failed failed to do, but to do, does not require but does require separate Pa.R.A.P. separate Pa.R_A.P, 1925(a) 1925(a) opinions from each judge where the basis for the pre- trial ruling ruling is is clear from the order and/or opinion issued by by the judge at at the time the ruling was made. Pa.RR.AP Pa.R.A.P. Rule Rule 1925(a).

1925(a). Judge Judge Tsai included an extensive discussion of the basis of the court's Order, which reasoning is incorporated into this Opinion. see incorporated see Discussion.

The other two motions, The I motions, which are not the subject of this Appeal, sought to preclude Plaintiff's Plaintiffs claim for breach of contract under the Gist of the Action Doctrine, and to preclude Plaintiff Plaintiffssclaim for emotional distress damages. damage 'Plaintiff's damages Plaintiff's damages proofs proofs included included "what what [Plaintiff] [Plaintiff] would have received with the post-nup, $2,134,350." Notes of Testimony ("N.T.

Testimony (NT, II"), 7, 2023 at II"), June 7,2023 at 4. Plaintiffs Plaintiff's exhibits, including his damages proofs, were moved into the Id. at 15. The court instructed the jury record. Id. jury that the measure of damages in this legal malpractice case isis "the

wasprerecorded, was prerecorded,evidence evidenceofof Plaintiff'scompensatory Plaintiff's compensatorydamages wasnot damageswas notsupported supportedbybyexpert expert testimony. Id. at \]22. testimony. Id. at ¶ 22.

Jurytrial Jury trialbegan beganononJune June5,5,2023.

2023.During DuringDefendants' Defendants'opening openingargument, counselreferred argument,counsel referred tototestimony testimonygiven givenduring duringthe theFamily FamilyCourt Courtproceeding proceedingbybyMs.

Ms.Zelikovich's Zelikovich'sdaughter andfather. daughterand father.

NotesofofTestimony Notes Testimony("N.T. ("N.T.I"), I"),June June6,6,2023 2023atat29-30.

29-30.Plaintiff Plaintiffobjected objectedtotoreferences referencestotothis this testimonyasashearsay testimony hearsayand andmoved movedfor foraamistrial mistrialononthe thebasis basisofofitsitsintroduction. introduction.Id.Id.atat104-105.

104-105.The The Courtinstructed Court instructedthe theparties partiesthat thatany anyfurther furtherreference referencetotoororsubstantiation substantiationofofwitness witnesstestimony testimony fromthe from theFamily FamilyCourt Courtproceeding, proceeding,other otherthan thanthe thetestimony testimonyofofpersons calledasaswitnesses personscalled witnessesduring during thisproceeding, this proceeding,would wouldbebesubject subjecttotocurative curativeinstruction. instruction.Id. Id.The TheCourt Courtdenied deniedPlaintiff's Plaintiffsmotion motion for mistrial. Id. for mistrial. Id. Onthe On thesecond secondday dayof oftrial, trial,Defendants Defendantsoffered offeredMs.

Ms.Zelikovich Zelikovichasasaawitness. witness.N.T.

N.T.IIIIatat23.

23.

Defendants'counsel Defendants' counselasked askedMs.

Ms.Zelikovich Zelikovichififher herdaughter testifiedon daughtertestified onher herbehalf behalfatatthe theFamily Family Courtproceeding, Court proceeding,and andPlaintiff's Plaintiffshearsay hearsayobjection objectionwas wassustained. sustained.Id. Id.atat38-39.

38-39.On Oncross- cross- examination,Plaintiff's examination, Plaintiff'scounsel counselasked askedMs.

Ms.Zelikovich Zelikovichwhether whethershe shewas waslooking fora lookingfor anew newplace place tolive to liveininDecember December2014.

2014.Id. Id. atat42.

42.Defendants' Defendants' counsel counselobjected objectedtotothe thequestion questionasasbeyond the beyondthe ofdirect scopeof scope directexamination. examination.Id. Id. atat43.

43. The Thecourt courtsustained sustainedthe theobjection. Id. Plaintiffs objection. Id. Plaintiffscounsel counsel thatthis arguedthat argued thisline lineof ofquestioning questioningisis crucial crucial in inshowing thatMs. showingthat Ms. Zelikovich Zelikovichdid didnot notsign the signthe agreementunder post-nuptial agreement post-nuptial underduress. duress. Id. Id. Defendants' Defendants' counsel counsel objected to a objectedto a question on cross- question on cross- examination about examination Ms. Zelikovich's aboutMs. Zelikovich's prior prior deposition deposition testimony: testimony: that that is, is, whether whether she she believed believed Defendant Steward Defendant Steward was was truthful truthful with with her her during during their their meetings meetings about about the the postnuptial postnuptial agreement. agreement.

difference between difference between thethe amount amount that that Mr. Mr. Zelikovich Zelikovich would would have have received received under under the the postnuptial postnuptial agreement agreement provided provided by Defendant Steward minus the amount he actually received in the settlement." Notes of Testimony by Defendant Steward minus the amount he actually received in the settlement." Notes of Testimony (N.T. III"), (N.T. III"), June 8, 2023 at 14. During his closing argument, Plaintiffs counsel told the jury that Plaintiff's damages June 8, 2023 at 14. During his closing argument, Plaintiffscounsel told the jury that Plaintiff's damages include include what he what he would would have have received received inin the the postnuptial postnuptial agreement. Id. at agreement. Id. at 59.

59. During his closing During his closing argument, Defendants' argument, Defendants' counsel acknowledged that Plaintiff"thinks he's entitled to the difference between what he would counsel acknowledged that Plaintiff "thinks he's entitled to the difference between what he would have gotten have gotten if if the the agreement was enforced and what he actually received, you know, if this agreement that wasn't enforceable agreement was enforced and what he actually received, you know, if this agreement that wasn't enforceable because because of its terms ... [was enforced]" Id. at 79. of its terms... [was enforced]" Id. at 79.

Defendants' objection objection that the question question went beyond beyond the scope of direct examination was sustained. Id. at 50.

50.

On June 8, 8, 2023, 2023, the jury jury returned aaverdict in favor of Defendants. The jury determined that Defendants breached that Defendants breached their contract for their contract for legal services but legal services the breach but the breach did did not cause injury not cause injury to to Plaintiff. Notes of Testimony Testimony ("N.T. ("N.T. IV"), IV), October 12, 2023 at 8. Plaintiff filed a a post-trial motion on July 6, 2023, July 6, requesting the court vacate the 2023, requesting the verdict verdict and and order a a new trial. Following oral argument, argument, the court denied Plaintiff's post-trial motion on November 3, 2023. Plaintiff filed this instant appeal to the Superior Superior Court of Pennsylvania on November 14, 2023.

II. ISSUES ON APPEAL In his December 5, 2023 1925(b) Statement, Plaintiff contends that: 1.

I. The court erred in limiting limiting Plaintiff Plaintiffss cross-examination of witness Irina Zelikovich.

1925(b) 1925(b) Statement at ¶ 2.

Statement at 2.

2. The court 2. The court erred erred in in denying Plaintiffs motion denying Plaintiffs motion for for aamistrial mistrial after after Defendant's Defendant's counsel counsel made references to hearsay testimony from the Family Court proceeding challenging the hearsay testimony underlying underlying post-nuptial post-nuptial agreement. at ¶ 3. agreement. Id. at 3.

3, The court erred in granting granting Defendants' motion in limine limiting Plaintiff Plaintiffsslegal expert's testimony expert's regarding damages. testimony regarding damages. Id. Id. at at4¶4 4. The court erred in denying denying Plaintiff's Motion for Vacatur/Striking/Opening/Removal of the Trial Verdict Verdict and Requesting Requesting aaNew New Trial which which asserted the the above contentions. contentions. Id. Id. at at ¶1 I granting, in part, 5. The court erred in granting, part, Defendants' motion for judgment on pleadings thereby thereby dismissing Count I (Negligence) (Negligence) and Count II (Breach of Fiduciary Duty) of Plaintiffs Second Amended Complaint. Id. at Plaintiff's at ¶ 5.

III.

III.

DISCUSSION DISCUSSION

1.1. Plaintiff Plaintiff wasproperly was limitedinincross- properlylimited cross-examining IrinaZelikovich examining Irina Zelikovichbecause because Plaintiff's questions went beyond the scope of Defendants' direct examination.

Plaintiffs questions went beyond the scope of Defendants' direct examination.

Cross-examinationmust Cross-examination mustbebelimited limitedtotothe thesubject subjectmatter matterofofthe thedirect directexamination. examination.Pa. Pa. R.E.611(b).

R.E. 611 (b).The Thescope scopeofofcross-examination cross-examinationisisaamatter matterwithin withinthe thediscretion discretionofofthe thetrial trialcourt. court.

Commonwealthv.v.Largaespada, Commonwealth Largaespada,184 184A.3d A.3d1002, 1002,1009 1009(Pa. (Pa.Super. Super. 2018). Grantinganew 2018).Granting a newtrial trialonon thebasis the basisofofananevidentiary evidentiaryruling rulingrequires thatthe requiresthat theruling waserroneous rulingwas erroneousand andaffected affectedthe thejury's jury's verdict.Schmidt verdict. Schmidtv.v.Boardman, Boardman,958 958A.2d A.2d498 498(Pa. (Pa.Super. Super. 2008), affd,1111A.3d 2008),affd, A.3d924 924(Pa. (Pa. 2011).

2011).

Fewappellate Few decisionsdirectly appellatedecisions directlyaddress addressPlaintiff's Plaintiff'sargument argumentthat thatheheshould shouldhave havebeen been permittedtoto"undercut permitted "undercutaafalse falsenarrative" narrative"underlying underlyingDefendants' Defendants'global globalposition positionby bycross- cross- Defendants'witness examiningDefendants' examining witnesswho whowas wasnot notcalled calledtototestify testifytotofacts factssupporting the"false supportingthe "false narrative,"and narrative," andPlaintiff Plaintiffcites citestotono noprior decisionsatatall priordecisions allininhis hismemorandum memorandumof oflaw lawininsupport of supportof hispost-trial his motionwhen post-trialmotion whenraising thisargument. raisingthis Pl.'sBr. argument.Pl.'s Br.ininSupp. ofPl.'s Supp.of PI.'sPost-Trial Post-TrialMot.

Mot.for for ofthe Vacatur/Striking/Opening/Removalof Vacatur/Striking/Opening/Removal theTrial TrialVerdict Verdictand andRequesting Requestinga aNew NewTrial.

Trial. In In Commonwealthv.v. Cessna, Commonwealth Cessna,Appellant wasconvicted Appellantwas convictedof offirst firstdegree degreemurder murderfor forkilling killinghis hisstep- step- father. Com. father. Com. v.v. Cessna, Cessna, 371 Pa. Pa. Super. 89,537 Super. 89, A.2d 834 537 A.2d 834((1988). Duringtrial, 1988). During trial,the the Commonwealthcalled Commonwealth calledAppellant's mother, the Appellant's mother, the wife wife of ofthe thevictim, victim, as as a awitness. witness. Id. Id. atat 97.

97. On On cross-examination, Appellant cross-examination, Appellant attempted to question attemptedto the witness questionthe witness about about her her own ownpossible possible motives motives forthe for the killing. Id. The killing. Id. The Commonwealth Commonwealth objected to this objected to this line line of ofquestioning questioning as as beyond beyond the the scope scope of of direct, the direct, the trial trial court court sustained sustained the the objection, and the objection, and the Superior Court upheld Superior Court the trial upheld the trial court, court, that, though reasoning that, reasoning though "[c]ross-examination may be "[c]ross-examination may be used used to to test test a a witness's witness's story" story" invoked invoked on on direct examination, direct examination, "to "to impeach impeach credibility, and to credibility, and to probe probe a a witness's witness's motive motive for for testifying," testifying."

questioning the witness "about [her] motives for doing the killing rather than motives for questioning the witness "about [her] motives for doing the killing rather than motives for testifying ... clearly [goes] beyond the scope of direct and outside permissible impeachment testifying... clearly [goes] beyond the scope of direct and outside permissible impeachment inquiry." Id. inquiry." Id. During During trial, trial, Ms.Ms. Zelikovich Zelikovich was was asked asked onon direct direct examination examination byby Defendants'counsel Defendants' counsel about any meetings she had with Mr. Steward in his capacity as an attorney prior to December about any meetings she had with Mr. Steward in his capacity as an attorney prior to December 2014, the character of the meetings she had with Mr. Steward regarding the postnuptial 2014, the character of the meetings she had with Mr. Steward regarding the postnuptial agreement, and the 2016 Family Court hearing. N.T. II at 23-40. On cross-examination, Plaintiff agreement, and the 2016 Family Court hearing. N.T. 1I at 23-40. On cross-examination, Plaintiff asked: 1) whether it was true that by December 2014, she was already looking for places to live asked: 1) whether it was true that by December 2014, she was already looking for places to live (N.T. II at 42); 2) whether she testified that Mr. Steward was truthful with her previouslytestified that Mr. Steward was truthful with her during (N.T. II at 42); 2) whether she previously during themeetings; the meetings;and and3)3)whether whetherMr.

Mr.Steward Stewardtold toldher herthat thatshe shecould couldnot notwaive waivechild-support child-supportininthe the agreement. N.T. II at 48-50. The trial court sustained Defendants' counsel's objection to each agreement. N.T. II at 48-50. The trial court sustained Defendants' counsel's objection to each question as the scope of direct examination. N.T. II at 43, 49-50. beyondthe scope of direct examination. N.T. II at 43, 49-50. question as beyond Plaintiffargues Plaintiff arguesthat thathis hisquestions weremeant questionswere meanttoto"undercut "undercutthe thefalse falsenarrative narrativeelicited elicited during Defendant's direct examination that Irina entered into the post-nuptial agreement under during Defendant's direct examination that Irina entered into the post-nuptial agreement under duressorortotosave duress saveher hermarriage." marriage."Pl.'s Pl.'sPost-Trial Post-TrialMot.

Mot.for forVacatur/Striking/Opening/Removal of Vacatur/Striking/Opening/Removalof theTrial the TrialVerdict Verdictand andRequesting RequestingaaNew NewTrial Trialatat 13.Plaintiff 113. Plaintiffargues arguesthat thathis hiscross-examination cross-examination directlytotowhat "goesdirectly "goes whather herintentions intentionswere werewhen whenshe shewas wasentering enteringinto intothe thepost-nup." post-nup."N.T.

N.T.IIIIatat 43.Although 43. Defendants' counsel AlthoughDefendants' counselasked askedMs.

Ms.Zelikovich Zelikovichon ondirect directwhether whethershe sheshowed showeddistress distress in front of Mr. Steward their December 2014 meeting, she was not asked about her duringtheir December 2014 meeting, she was not asked about her in front of Mr. Steward during subjective beliefs about signing the agreement. Id. at 32. Defendants' direct examination did not subjective beliefs about signing the agreement. Id. at 32. Defendants' direct examination did not concern Ms. Zelikovich's intentions. Ms. Zelikovich was asked about the character of her concern Ms. Zelikovich's intentions. Ms. Zelikovich was asked about the character of her with Defendant meetings with meetings Defendant Steward, Steward, and and the the 2016 2016 Family Court hearing.

Family Court hearing. Her Her testimony testimony was was limited to limited to what what she she expressed to Defendant expressed to Defendant Steward, Steward, not not what what she she may may have have felt felt or or believed believed

about signing the agreement. Plaintiffs questions during cross-examination probing her about signing the agreement. Plaintiffs questions during cross-examination probing her intentions in signing the agreement therefore exceeded the scope of Defendants' direct intentions in signing the agreement therefore exceeded the scope of Defendants' direct examination. Under the ruling of Com. v. Cessna, questions regarding witness motives and examination. Under the ruling of Com. v. Cessna, questions regarding witness motives and intentions related to conduct underlying the litigation, rather than witness motive for testifying, intentions related to conduct underlying the litigation, rather than witness motive for testifying, are beyond permissible impeachment inquiry. The court properly found that Plaintiffs questions are beyond permissible impeachment inquiry. The court properly found that Plaintiff's questions exceeded the scope of the direct examination of Ms. Zelikovich. exceeded the scope of the direct examination of Ms. Zelikovich.

2. The court properly denied Plaintiff's motion for a mistrial.

2. The court properly denied Plaintiffs motion for amistrial.

Admission of evidence is within the discretion of the trial court. Hawkey v. Peirsel, 869 Admission of evidence is within the discretion of the trial court. Hawkey v. Peirsel, 869 A.2d 983, 989 (Pa. Super. 2005). Granting a new trial on the basis of an evidentiary ruling A.2d 983, 989 (Pa. Super. 2005). Granting anew trial on the basis of an evidentiary ruling requires a determination that the ruling was erroneous, and that it affected the jury's verdict. requires adetermination that the ruling was erroneous, and that it affected the jury's verdict.

Schmidt, 958 A.2d 498. "A prompt and effective curative instruction, in the absence of Schmidt, 958 A.2d 498. "A prompt and effective curative instruction, in the absence of extraordinary circumstances ... will suffice to cure any prejudice suffered by the complaining extraordinary circumstances ... will suffice to cure any prejudice suffered by the complaining party." Mount Olivet Tabernacle Church v. Edwin L. Wiegand Div., 2001 PA Super 232, 35, party." Mount Olivet Tabernacle Church v. Edwin L. Wiegand Div., 2001 PA Super 232, ¶ 35, 781 A.2d 1263, 1275 (2001), affd sub nom. Mount Olivet Tabernacle Church v. Edwin Wiegand 781 A.2d 1263, 1275 (2001), aff dsub nom. Mount Olivet Tabernacle Church v. Edwin Wiegand Div., 571 Pa. 60, 811 A.2d 565 (2002). It is well settled that juries are presumed to heed curative Div., 571 Pa. 60, 811 A.2d 565 (2002). It is well settled that juries are presumed to heed curative instructions. Steltz v. Meyers, 265 A.3d 335 (Pa. 2021). instructions. Steltz v. Meyers, 265 A.3d 335 (Pa. 2021).

Plaintiffs motion for mistrial was based on the improper introduction of hearsay Plaintiff's motion for mistrial was based on the improper introduction of hearsay evidence. N.T. I at 105. Plaintiff maintained that a curative instruction would be inadequate to evidence. N.T. Iat 105. Plaintiff maintained that acurative instruction would be inadequate to cure any prejudice. N.T. II at 39, 57-58. Plaintiff cited references in Defendants' opening cure any prejudice. N.T. II at 39, 57-58. Plaintiff cited references in Defendants' opening statement to witness testimony given during the Family Court proceeding. N.T. I at 105. In his statement to witness testimony given during the Family Court proceeding. N.T. Iat 105. In his opening statement, Defendants' counsel stated that Ms. Zelikovich testified in Family Court that opening statement, Defendants' counsel stated that Ms. Zelikovich testified in Family Court that Plaintiff bullied her, and that "her father [also] testified to that." N.T. I at 29. Counsel also stated Plaintiff bullied her, and that "her father [also] testified to that." N.T. Iat 29. Counsel also stated

thatMs. that Ms.Zelikovich's Zelikovich'sdaughter daughtertestified testifiedininFamily FamilyCourt Courtthat thatMs.

Ms.Zelikovich Zelikovichand andPlaintiff Plaintiffgot gotinin arguments"sometimes arguments "sometimesover overwhat whatclasses classesshe shewould wouldtake takeininschool. school.They gotininananargument Theygot and argumentand hethrew he threwaababy babybottle bottleatather. her.And Andshe shegot gotsosoupset sheleft upsetshe leftthe thehouse." house."N.T.

N.T.IIatat30.

30.

Plaintiffobjected Plaintiff objectedtotoreferences referencestotothe theFamily FamilyCourt Courttestimony testimonyasashearsay. Id.atat90-91. hearsay.Id. 90-91.

Thecourt The courtruled ruledthat thatany anyfurther furtherstatements statementssubstantiating substantiatingthe theFamily Courttestimony FamilyCourt ofpersons testimonyof persons otherthan other thanPlaintiff Plaintiffand andMs.

Ms.Zelikovich Zelikovichwould wouldbe beruled ruledinadmissible, inadmissible,and andsubject subjecttotocorrective corrective instruction.N.T. instruction. N.T.IIatat104-105.

104-105.During DuringDefendants' Defendants' case caseininchief, chief,the thecourt courtpermitted Ms. permittedMs.

Zelikovichtototestify Zelikovich testifyasastotoher herown ownFamily FamilyCourt Courttestimony. N.T.IIIIatat38-39. testimony.N.T. 38-39.The TheCourt Courtsustained sustained Plaintiffs Plaintiff objectionwhen sobjection whenshe shewas wasasked askedwhether whetherher herfather fatherand anddaughter daughtertestified testifiedon onher herbehalf. behalf. Id. Whencharging When chargingthe thejury, jury,the thecourt courtinstructed instructedthe thejurors jurorsthat thatthey they"may considertestimony "may consider testimony byDaniel providedby provided DanielZelikovich Zelikovichor orIrina IrinaZelikovich Zelikovich[from [fromthe theFamily Family Court] Court] hearing," andthat hearing," and that they "may they "maynot notconsider considerthe thetestimony testimony of ofany any other otherperson who may personwho may have have appeared appeared atatthat that hearing."N.T. hearing." N.T. III III atat 14.

14. Given Giventhe the absence absence of ofextraordinary circumstances, a extraordinary circumstances, a curative curative instruction instruction was adequate was adequate to to cure cure any any prejudice to Plaintiff. prejudice to Plaintiff. see Siegal v. see Siegal v. Stefanyszyn, 718 A.2d Stefanyszyn, 718 A.2d 1274 1274(Pa. (Pa. Ct. 1998) Super. Ct. Super. 1998)(holding that a (holding that atrial trial court's court's curative curative instruction instruction was was insufficient insufficient to to overcome overcome to Plaintiff prejudice to prejudice Plaintiffwhere where Defendants' Defendants' counsel counsel made made knowingly false statements knowingly false statements during closing during closing Thejury argument). The argument). jury isis presumed presumed to to have have heeded heeded the the instruction. instruction. Steltz, Steitz, 265 A.3d A.3d 335.

335. The The references to references to the the Family Family Court Court testimony testimony did did not not prejudice Plaintiff or prejudice Plaintiff or warrant warrant a a mistrial. mistrial.

3. Any 3. limitation of Any limitation of Plaintiff Plaintiff's expert testimony s expert did not testimony did not prejudice Plaintiff because prejudice Plaintiff because the jury the did not jury did not reach reach the the issue issue of of damages. damages.

A new trial is not warranted unless the complained-of error was material to to the outcome of the case. Harman ex rel. Harman v. Borah, 562 Pa. 455, 467, 756 A.2d 1116, 1122 455,467, 1122 (2000). (2000). If

thecomplaining the complainingparry partyisisunable unabletotodemonstrate thatit ithas demonstratethat hassuffered sufferedharm harmasasaaresult resultofofthe theerror, error, theerror the errorisisharmless. harmless.Id.Id."The "Theharmless harmlesserror errordoctrine doctrineunderlies underliesevery decisiontotogrant everydecision grantorordeny denyaa new trial." Id. new trial." Id. Attrial, At trial,Plaintiff Plaintiffsought soughttotointroduce introducethe thetestimony testimonyofofToni ToniLee LeeCavanaugh.

Cavanaugh.Pl.'s Pl.'sPost- Post- Trial Motionatat¶¶2 TrialMotion Defendantsfiled 0-21.Defendants 20-21. filedaamotion motionininlimine liminetotopreclude precludeintroduction introductionofofMs.

Ms. Cavanaugh'stestimony Cavanaugh's testimonyregarding thecalculation regardingthe calculationofofPlaintiff's Plaintiff'sdamages. TheCourt damages.The Courtgranted granted Defendants'motion Defendants' motionand andruled ruledthat thatPlaintiff's Plaintiff'sdamages damageswere werelimited limitedtotohis hisunderlying underlyinglegal fees. legalfees.

Ultimately,however, Ultimately, however,the theCourt Courtpermitted permittedevidence evidenceofofcompensatory compensatorydamages otherthan damagesother than legalfees. underlyinglegal underlying fees.Id. Id.atat22-23.

22-23.During DuringMs.

Ms.Cavanaugh's Cavanaugh'sprerecorded videotestimony, prerecordedvideo testimony, Plaintifflimited Plaintiff limitedhis hisquestioning questioningininaccordance accordancewith withthe theCourt's Court'sorder. order.N.T.

N.T.IV IVatat7-8.

7-8.

Thejury The concludedthat, juryconcluded that,although Defendantsbreached althoughDefendants breachedtheir theircontract, contract,the thebreach breachdid didnot not causeinjury cause injurytotoPlaintiff.

Plaintiff.Plaintiff Plaintiffargues arguesthat, that,ififthe thejury juryheard heardMs.

Ms.Cavanaugh's Cavanaugh'stestimony testimonyabout about incurredby damagesincurred damages byPlaintiff, Plaintiff,ititcould couldhave havereasoned reasonedthat thatthe thebreach breachinjured PlaintiffN.T. injuredPlaintiff. N.T.IV IVatat 8.8.The Theexcluded excludedtestimony testimonywould wouldhave haveconcerned concernedwhether whetherPlaintiff's Plaintiff'sdamages damagesincluded included damages other compensatorydamages compensatory otherthan thanunderlying underlyinglegal legalfees, fees, such suchas aswhat whathe hewould wouldhave havereceived received hadthe had thepostnuptial beenenforced. agreementbeen postnuptial agreement enforced. Pl.'s Pl.'sPost-Trial Post-Trial Motion Motionatat 21;N.T.

¶ 21; N.T. IV IV atat8.8. The The wouldnot testimony would testimony nothave have concerned concerned whether whetherDefendants' Defendants' breach breachwas was a acausal causal factor factorin inthe the Court's decision Family Court's Family decision to to invalidate invalidate the the postnuptial agreement, so postnuptial agreement, so the the exclusion exclusion of ofthis this was not testimony was testimony not material material to to the the outcome outcome of ofthe the case. case.

4. The 4. The court court properly granted, in properly granted, in part, Defendants' Motion part, Defendants' Motion for for Judgment Judgment on on the the Pleadings because Plaintiff's negligence and breach of fiduciary duty claims Pleadings because Plaintiffs negligence and breach of fiduciary duty claims were barred barred by by the the applicable statutes of applicable statutes of limitation. limitation. 4 were

As noted As noted in in Footnote Footnote 1, 1, these these motions motions were were ruled ruled on on by the Honorable by the Honorable Judge Stella Tsai.

Judge Stella Tsai. The The following following section section incorporates the well-reasoned analysis contained in Judge Tsai's December 21, 2021 incorporates the well-reasoned analysis contained in Judge Tsai's December 21, 2021 Order.Order.

A "O]udgment may be entered on the pleadings only in the clearest of cases." Puleo v. A " Oludgment may be entered on the pleadings only in the clearest of cases." Puleo v. Broad St. Hosp., 267 Pa.Super. 581,584,407 A.2d 394, 396 (1979). "When considering a Broad St. Hosp., 267 Pa.Super. 581, 584, 407 A.2d 394, 396 ( 1979). "When considering a motion for judgment on the pleadings, a court must limit its review of the facts to those motion for judgment on the pleadings, acourt must limit its review of the facts to those appearing in the pleadings themselves." Id. "The party moving for judgment on the pleadings appearing in the pleadings themselves." Id. "The party moving for judgment on the pleadings must admit the truth of all the allegations of his adversary and the untruth of any of his own must admit the truth of all the allegations of his adversary and the untruth of any of his own allegations that have been denied by the opposing party." Pfister v. City of Philadelphia, 963 allegations that have been denied by the opposing party." Pfister v. City of Philadelphia, 963 A.2d 593, 597 (Pa.Cmwlth. 2009).

A.2d 593, 597 (Pa.Cmwlth. 2009).

Pennsylvania has a two-year statute of limitations for negligence and breach offiduciary Pennsylvania has atwo-year statute of limitations for negligence and breach of fiduciary duty claims, and a four-year statute of limitations for breach of contract claims. 42 P.S. § 5524 duty claims, and afour-year statute of limitations for breach of contract claims. 42 P.S. § 5524 (2004); 42 P.S. § 5525 (2004). The trigger for the accrual of a legal malpractice action is the (2004); 42 P.S. §5525 ( 2004). The trigger for the accrual of alegal malpractice action is the occurrence of the breach of the duty owed to the client ("the occurrence rule"), not when the occurrence of the breach of the duty owed to the client ("the occurrence rule"), not when the client first realizes actual loss.5 Communications Network International, Ltd. y. Mullineaux, 187 client first realizes actual loss. 5 Communications Network International, Ltd. v. Mullineaux, 187 A.3d 951,961 (Pa. Super. Ct. 2018). However, the statute of limitations can be tolled where the A.3d 951, 961 (Pa. Super. Ct. 2018). However, the statute of limitations can be tolled where the application of the "discovery rule" is appropriate. Where ''the injured party is unable, despite the application of the "discovery rule" is appropriate. Where "the injured parry is unable, despite the exercise of due diligence, to know of the injury or its cause," the statute of limitations will begin exercise of due diligence, to know of the injury or its cause," the statute of limitations will begin to run only "when the party injuredparty possesses to run only "when the injured sufficient critical facts to possessessufficient critical facts to put him on notice that a puthim on notice that a wrong has been committed" and that he may be entitled to redress. Wachovia, 935 A.2d at 572- wrong has been committed" and that he may be entitled to redress. Wachovia, 935 A.2d at 572- 573,Communications 573, CommunicationsNetwork NetworkInternational, International, 187 187A.3d A.3datat961 (citingMeehan ( citing Meehanv.v.Archdiocese Archdioceseof of Philadelphia, 870 A.2d 912, 919 (Pa. Super. 2005)) (emphases omitted).

Philadelphia, 870 A.2d 912, 919 (Pa. Super. 2005)) (emphases omitted).

Plaintiff argues that his cause of action did not accrue until May 2019, when the Family Court Master issued a Plaintiff argues that his cause of action did not accrue until May 2019, when the Family Court Master issued a decision awarding monetary damages arising from the invalidation of the postnuptial agreement. Plaintiff's decision awarding monetary damages arising from the invalidation of the postnuptial agreement. Plaintiff s Response in Opposition to Defendants' Motion for Judgment on the Pleadings. This is a variation of the "actual Response in opposition to Defendants' Motion for Judgment on the Pleadings. This is avariation of the "actual loss" argument which has been rejected by the Pennsylvania appellate courts. Wachovia Bank v. Ferretti, 935 A.2d loss" argument which has been rejected by the Pennsylvania appellate courts. Wachovia Bank v. Ferretti, 935 A.2d 565, 571-573 (Pa. Super. 2007). Plaintiff cites as authority for the adoption of the "actual loss" rule the Superior 565, 571-573 (Pa. Super. 2007). Plaintiff cites as authority for the adoption of the "actual loss" rule the Superior Court opinion in M&G, LLC v. Servant Investment Fund, No. 57 WDA 2019 (Pa. Super. Feb 22, 2021). This Court opinion in M&G, LLC v. Servant Investment Fund, No. 57 WDA 2019 (Pa. Super. Feb 22, 2021). This unpublished opinion has been withdrawn and can no longer be accessed. unpublished opinion has been withdrawn and can no longer be accessed.

Thequestion The questionofofwhen whenaaplaintiff knewofofororshould plaintiffknew shouldhave haveknown knownofofthe thecause causeofoftheir their injuryisisgenerally injury generallyreserved reservedfor forthe thefinder finderofoffact. fact.Fine Finev.v.Checcio, Checcio,870 870A.2d A.2d850, 850,862 862(Pa. (Pa. 2005).

2005).

Whenthe When thefacts factsaverred averredininthe thepleadings pleadingsreflect reflectthat thatmalpractice malpracticeclaims claimsare aretime timebarred barredand and recoveryisisimpossible, recovery impossible,however, however,such suchclaims claimsmay maybe bedismissed dismissedby ofaaMotion wayof byway Motionfor for Judgmenton Judgment onthe thePleadings.

Pleadings.see Schadev.v.Lauer, seeSchade Lauer,240 240A.3d A.3d956, 956,*4 *4n.4 n.4(Pa. (Pa.Super. Ct. 2020) Super.Ct. 2020) (unpublished)(quoting (unpublished) Cageyv.v.Commonwealth, (quotingCagey Commonwealth, 179 179A.3d A.3d458, 458,463 (Pa. 2018)).

463 (Pa. 2018)).

Applyingthe Applying the"occurrence "occurrencerule," rule,"Plaintiff Plaintiff's andbreach negligenceand snegligence breachof offiduciary fiduciaryduty duty causesof causes ofaction actionaccrued accruedwhen whenDefendants Defendantsrendered renderedtheir theirlegal servicestotoPlaintiff legalservices Plaintiffand andMs.

Ms. Zelikovichinin2014.

Zelikovich 2014.However, However,application ofthe applicationof the"discovery rule"isisappropriate "discoveryrule" appropriateinina alegal legal malpracticeaction malpractice actionbecause becausethe theinvalidity invalidityof ofa apostnuptial agreementwould postnuptialagreement wouldnot notbe beimmediately immediately apparenttotoa apparent alayperson. layperson. see Garciav.v. Community see Garcia CommunityLegal Services, 524 Legal Services, 524A.2d A.2d 980, 980,985 (Pa. Super. (Pa. Super. 1987).

1987).

Based Basedon onthe theundisputed undisputedfacts facts asserted asserted in inthe the Pleadings, Pleadings, the the latest latestdate datethat thatthe the statute statute of of limitations could limitations couldpossibly possibly begin to run beginto run isis June June 29, 29, 2016, 2016, the the date date when when Plaintiff's Plaintiff's counsel counsel received the received the Family Family Court Court Order Order invalidating the post-nuptial invalidating the post-nuptial agreement. Plaintiff's Second agreement. Plaintiff's Second Amended Complaint Amended Complaint at at 17. Plaintiff ¶ 17. Plaintiffcannot cannot plausibly plausibly claim claim that that he he did did not not yet yet possess possess sufficient critical sufficient critical facts facts to to be be charged charged with with notice notice that that a a wrong wrong had had been been committed committed and and that that he he be entitled may be may entitled to to redress redress after after he he was was notified notified that that the the Family Court found Family Court found the the agreement agreement drafted by drafted Defendants legally by Defendants unenforceable. The legally unenforceable. The statute statute of of limitations limitations began began to to run run on on June June 29, 29, 2016 and 2016 and expired on June expired on June 29, 29, 2018.

2018. Plaintiff Plaintifffiled filed this this legal legal malpractice action on malpractice action on June June 29, 29, 2020.

2020.

The two-year The statute of two-year statute of limitations limitations bars bars Plaintiff's Plaintiff's negligence negligence and and breach breach of fiduciary fiduciary duty duty claims. claims.

IV.

IV. CONCLUSION CONCLUSION

For Forthe the reasons reasons stated stated above, above, the the trial trial court court requests requests this this Honorable Honorable Court Courtto to affirm affirm its its Orders Orders and and deny deny Plaintiff's Plaintiffs request requestto to vacate vacate the thejudgment judgment against against him him and and grant grant a a new newtrial. trial.

BY BY THE THE COURT COURT

h»93id ANN ANN M.

M. BUTCHART, BUTCHART, I J.