Actual Damages Must Actually Be Alleged

In Pashak v. Barish, the husband of the appellant, William Pashak, agreed to settle a negligence case for $100,000 in accordance with advice from his attorney, Marvin Barish, Esq. 450 a2d 67 (1982). The settlement stemmed from an employment action where Mr. Pashak was working on a ship and was injured. Mr. Pashak executed a release and subsequently received the settlement proceeds.

Some time later, Mr. Pashak was notified that, contrary to his attorney's advice, his statutory compensation benefits would be terminated due to the settlement. Appellant, Dorothy Pashak also learned that she might be precluded from recovering any such benefits as a consequence of her husband's settlement. In December 1980, appellant commenced an action alleging that through attorney's malpractice she "has been precluded from ever receiving any statutory compensation benefits."

The case was dismissed on preliminary objections by the lower court and the Pennsylvania Superior court agreed with the ruling. The lower court's reasoning was that the "loss was too conjectural and remote to warrant recovery in a malpractice action."Further, the court reasoned that "when it is alleged that an attorney has breached his professional obligations to his client, an essential element of the cause of action, whether the action be denominated in assumptive or trespass, is proof ofactual loss."

The crux of the argument was that it is generally accepted that an attorney is not liable for any damages which are remote or speculative. The test of whether damages are remote or speculative has nothing to do with the difficulty in calculating the amount, but deals with the more basic question of whether there are identifiable damages. 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. . . . .Thus, damages are speculative only if the uncertainty concerns the fact of damages rather than the amount.

Applied to this case, the court found that the amount of Mrs. Pashak's recovery would depend upon whether she and Mr. Pashak would have any surviving children. However, she had not alleged, and could not amend her complaint to allege, the requisite harm to sustain her cause of action. Accordingly, the appelate court upheld the opinion of the lower court and sustained the preliminary objections and dismissed the complaint.

The lesson from this case was that when making a claim for malpractice, one must assert the specific actual damages suffered. If not, you risk losing the case entirely.

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