Knopick v. Connelly et al
Filing
107
MEMORANDUM re Dft's mtns for judgment on the pleadings 94 and for reconsideration 96 (Order to follow as separate docket entry)Signed by Honorable Sylvia H. Rambo on 08/05/13. (ma)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
NICHOLAS KNOPICK,
Plaintiff
v.
PHILIP A. DOWNEY,
Defendant
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Civil No. 1:09-CV-1287
Judge Sylvia H. Rambo
MEMORANDUM
In this civil action invoking this court’s diversity jurisdiction pursuant
to 28 U.S.C. § 1332, Plaintiff filed a complaint alleging that two groups of attorneys
committed legal malpractice related to their representations of Plaintiff in
connection with a property settlement agreement and legal malpractice action arising
therefrom. Presently before the court are two motions. (See Docs. 94 & 96.) The
first motion, filed by Plaintiff, requests that the court reconsider its December 29,
2009 order dismissing the Connelly Defendants. (Doc. 96.) The second motion,
filed by Defendant Downey, requests the court enter judgment in his favor on the
basis that he was not the proximate cause of Plaintiff’s harm. (Doc. 94.) Both
motions rely, in part, on a December 20, 2012 Pennsylvania Superior Court
decision, Coleman v. Duane Morris, LLP, 58 A.3d 833 (Pa. Super. Ct. 2012). For
the following reasons, the court will deny both motions.
I.
Background
At the heart of the instant motions is this court’s December 29, 2009
order granting the Connelly Defendant’s motion to dismiss. (Doc. 29.) In reaching
its conclusion, the court found that Plaintiff’s complaint failed to adequately plead a
breach of contract action for legal malpractice, but adequately pleaded a cause of
action arising in professional negligence. (Id. at p. 9 of 12.) Finding that the gist of
the action against the Connelly Defendants was subject to a two-year statute of
limitations that had expired before Plaintiff commenced this lawsuit, the court
dismissed the Connelly Defendants from the matter.
A.
Facts1
On May 11, 1998, Plaintiff separated from his wife pursuant to a
Property Settlement Agreement (“PSA”) drafted by his attorney at the time. (Doc. 1,
¶ 8.) Plaintiff alleged that, at the time he and his wife entered into the PSA, his wife
was fully aware of all his assets, which included approximately $2 million worth of
stock. (Id. at ¶¶ 10, 14.) Plaintiff also alleged that his wife was aware, at the time of
the PSA, that the stock was encumbered by a loan. (Id. at ¶ 14.)
On July 30, 1999, Plaintiff filed for divorce. (Id. at ¶ 16.) Despite the
existence of the PSA, Plaintiff’s wife filed for, inter alia, an equitable distribution of
the marital assets in the Court of Common Pleas of Perry County, Pennsylvania (Id.
at ¶ 17), claiming that the PSA was invalid because she was unaware of the two
million dollars of stock held by Plaintiff (Id. at ¶ 18). On October 31, 2001, Plaintiff
retained the Connelly Defendants as his counsel. (Id. at ¶¶ 21-24.) Prior to a
hearing on the validity of the PSA, Plaintiff’s wife offered to settle the case if
Plaintiff would transfer to her $300,000.00 of his stock. (Id. at ¶ 26.) The Connelly
Defendants assured Plaintiff that the PSA was valid and that his wife was not
entitled to more than the $60,000.00 she already received. (Id. at ¶ 27.) The
Connelly Defendants further assured Plaintiff that, even if the PSA was found to be
1
The background of this matter has been recited in the court’s December 29, 2009
memorandum and order dismissing the Connelly Defendants (see generally Doc. 29, pp. 2-5 of 12), and
the court’s May 6, 2013 memorandum and order denying Defendant Downey’s second motion for
summary judgment (see generally Doc. 88, pp. 32-35 of 42). Nevertheless, the court reproduces herein
the pertinent facts as set forth in the pleadings and relevant to the instant motion.
2
invalid, Plaintiff would only have to pay his wife the amount that the stock was
worth at the time the PSA was executed, which would have been zero dollars
because the stock was encumbered by a $2 million loan. (Id. ¶ 28.)
On August 2, 2004, a hearing was held in the Court of Common Pleas
of Perry County, Pennsylvania, before the Honorable Kathy A. Morrow. (Id. at ¶¶
30, 34.) Plaintiff alleged that, prior to this date, he informed the Connelly
Defendants that several witnesses were available to testify that his wife was aware
of the stock at the time she entered into the PSA. (Id. at ¶ 32.) None of these
witnesses were called at the hearing. (Id. at ¶ 31.) Afterward, the Connelly
Defendants assured Plaintiff that the hearing had gone well and that he should win.
(Id. at ¶ 33.)
On July 5, 2005, Judge Morrow issued an order invalidating the PSA
finding that Plaintiff had failed to provide his wife with a full and fair disclosure of
his assets. (Id. at ¶ 34.) On August 29, 2005, Plaintiff discharged the Connelly
Defendants. (Id. at ¶ 39.)
On July 31, 2006, Plaintiff contacted Attorney Downey wishing to have
his case reviewed for any potential malpractice claims against the Connelly
Defendants. (Id. at ¶ 46.) Defendant Downey contacted the Connelly Defendants,
requesting information regarding their representation of Plaintiff at the August 2,
2004 hearing. (See id. at Ex. D.) On March 30, 2007, Defendant Downey and
Plaintiff entered into a contingent fee agreement. (Id. at Ex. E.) The scope of the
agreement provided that “[Plaintiff] retains [Defendant Downey] to institute,
prosecute, negotiate and compromise claims or actions as may be deemed advisable
by [Defendant Downey] in [Plaintiff]’s best interest to recover damages from [the
3
Connelly Defendants].” (Id.) Defendant Downey never filed a malpractice suit
against the Connelly Defendants (Id. at ¶ 51), and on February 25, 2008, Defendant
Downey informed Plaintiff that he would not pursue a legal malpractice claim
against the Connelly Defendants because Plaintiff was “limited to a claim for breach
of contract” and that the statute of limitations on that claim was two-years, which
had begun to run on August 2, 2004, when the Connelly Defendants failed to call
potentially relevant witnesses at the hearing (Id. at Ex. F).
B.
Procedural History
Plaintiff initiated this case by filing a complaint on July 6, 2009.2 The
complaint named two sets of defendants, and brought, what Plaintiff labeled as, a
breach of contract claim against the Connelly Defendants in connection with their
state court representation of Plaintiff in the PSA proceedings (Count I), and a legal
malpractice (Count II) and breach of contract claim (Count III) against Defendant
Downey in connection with his failure to adequately prosecute Plaintiff’s legal
malpractice claim against the Connelly Defendants. (See Doc 1.) Plaintiff set forth
the following in support of his breach of contract claim against the Connelly
Defendants:
57. When an attorney enters into a contract to provide
legal services, there automatically arises a contractual duty
on the part of the attorney to render those services in a
manner that comports with the profession at large.
*
2
*
*
Relevant to the instant motions, the court notes that the civil cover sheet, as completed by
Plaintiff’s counsel, invoked the court’s diversity jurisdiction and indicated the nature of the suit as one in
tort, not contract. (See Doc. 1-3.)
4
59. [By retaining the Connelly Defendants], the [Connelly
Defendants], by implication, agreed to provide [Plaintiff]
with professional services consistent with those expected
of the profession at large.
`
*
*
*
61. [The Connelly Defendants] had a duty to conduct
themselves as a reasonable attorney would act.
62. [The Connelly Defendants] owed [Plaintiff] a duty to
possess and employ the skill and knowledge that ordinarily
is employed by a professional.
*
*
*
64. An attorney exercising the ordinary skill and
knowledge of a legal professional would have investigated
and called [the witnesses suggested by Plaintiff at the
hearing].
65. [The Connelly Defendants] acted in deviation from the
standard of care of a reasonable attorney and breached
their duties they owed to [Plaintiff].
66. [The Connelly Defendants]’s actions were the
proximate cause of [Plaintiff]’s harms, were a substantial
factor in bringing about his harms, and significantly
increased the risk his harms would occur.
67. This failure was a direct cause of the July 5, 2005
Order that set aside the [PSA] and the unfavorable
settlement that resulted from that Order.
68. Plaintiff would have prevailed in the state court
dispute over the [PSA] in the absence of professional
negligence by [the Connelly Defendants].
(Doc. 1, ¶¶ 57, 59, 61, 62, 64-68 (emphasis added).)
On July 22, 2009, the Connelly Defendants filed a motion to dismiss
(Doc. 4), which the court granted on December 29, 2009, on the basis that the
5
applicable two-year statute of limitations3 had expired prior to the complaint’s July
22, 2009 filing date. (Doc. 29.) In arriving at its decision, the court found that,
despite Plaintiff labeling Count I as breach of contract against the Connelly
Defendants, the allegations contained therein were more properly asserted as an
action sounding in tort rather than contract. Specifically, the court reasoned:
These allegations, plainly read, employ tort-like language
and obligations rather than contract-like obligations, thus,
leading the court to conclude that the gist of the action is
one of tort not contract.
(Id. at p. 9 of 12.) Thus, although the court recognized that a plaintiff may bring a
malpractice claim under both contract and tort theories of liability, it held that
Plaintiff’s claim arose in tort, and applied Pennsylvania’s two-year statute of
limitations applicable to malpractice tort claims, 42 Pa. Cons. Stat. Ann. § 5524,
rather than the four-year statute of limitations applicable to contract claims, 42 Pa.
Cons. Stat. Ann § 5525. (See id.) Plaintiff neither sought to file an amended
complaint properly stating a viable cause of action for breach of contract nor
appealed the court’s ruling.
On October 21, 2009, Defendant Downey filed a motion for summary
judgment on the two claims asserted against him, namely the legal malpractice claim
at Count II and breach of contract claim at Count III. (Doc. 15.) Defendant Downey
argued that he was entitled to judgment in his favor because he and the Connelly
Defendants did not cause Plaintiff to suffer economic damages, reasoning that the
PSA at issue in the state court proceedings was the product of Plaintiff’s own fraud.
3
The court found that the two-year statute of limitations for legal malpractice claims
applied to Plaintiff’s claim against the Connelly Defendants. (See Doc. 29, pp. 9-10.)
6
(Doc. 17, pp. 5, 11 of 15.) On January 25, 2010, the court granted Defendant
Downey’s motion for summary judgment on the basis that the two-year statute of
limitations applicable to a legal malpractice claim sounding in negligence had
expired. (Doc. 32.) Similar to its reasoning for dismissing the Connelly
Defendants, the court found that, despite Plaintiff labeling Count III as breach of
contract against Defendant Downey, the allegations contained therein were more
properly asserted as an action arising in tort rather than contract. (Id. at pp. 12-13 of
14.) Specifically, the court reasoned:
Count Three of the complaint clearly sound[s] in tort, not
contract. Plaintiff discusses the standard of care owed by
an attorney, not a breach of specific terms of the
contingent fee agreement. . . . . Merely reciting the
language “specific terms of the contract” without citing
which terms the parties breached, is insufficient. . . . [I]t is
not the court’s role to parse through the document to
ascertain which provision Defendant potentially breached.
(Doc. 32, pp. 11-13 of 14 (emphasis in original) (footnote omitted).) The court then
applied the occurrence rule and found that the statute of limitations for Plaintiff to
bring the legal malpractice claim asserted against the Connelly Defendants expired
on August 2, 2006, two years after the occurrence of the alleged malpractice, which
was nearly six months prior to Plaintiff’s retention of Defendant Downey in March
2007. (See Doc. 32, pp. 3, 9 of 13.) The court reasoned that, because the statute of
limitations had run on Plaintiff’s claim against the Connelly Defendants prior to
Plaintiff’s retention of Defendant Downey, Defendant Downey could not be held
liable for failing to commence a time-barred action against the Connelly Defendants.
(See id.) Plaintiff appealed that ruling. (See Doc. 34.)
7
Applying the discovery rule instead of the occurrence rule, the United
States Court of Appeals for the Third Circuit reversed and remanded, finding that
reasonable minds could differ as to whether Plaintiff reasonably knew or should
have known of his injury before the Perry County Court of Common Pleas entered
its order on the underlying property settlement agreement. (Doc. 37.) Thus, the
Third Circuit held it was not clear from the record whether the statute of limitations
had expired on Plaintiff’s tort claim against the Connelly Defendants prior to
Plaintiff’s retention of Defendant Downey. (Id.) To be clear, the Third Circuit did
not determine the date on which the action against the Connelly Defendants accrued;
rather, it determined that “reasonable minds could disagree in determining whether
[Plaintiff] knew or should have known, through the exercise of reasonable diligence,
of his alleged injury as early as August 2, 2004, the date of the hearing.” (Doc. 371, p. 27 of 28.) Nor did the Third Circuit consider whether Plaintiff adequately
asserted a breach of contract claim, because, as the Court noted, “[Plaintiff]
acknowledged at oral argument that he . . . abandoned his contract claim.” (Id. at p.
9 n. 8 of 28.) In short, the Third Circuit held that this court erred in finding, as a
matter of law, that the limitations period in Plaintiff’s tort claim was triggered as of
the August 2, 2004 county court hearing.
On remand, Defendant Downey filed a second motion for summary
judgment on June 18, 2012 (Doc. 49), in which he argued that the underlying PSA
was invalid on its face, and that the Connelly Defendants could not have changed
such a conclusion by the county court, regardless of their actions at the August 2,
2004 hearing. (See Doc. 51, p. 29 of 30.) Defendant reasoned that, because the
Connelly Defendants did not commit malpractice, he could not have committed the
8
same for his failure to timely initiate what would essentially have been an
unsuccessful lawsuit against the Connelly Defendants. (Id.) Following the lifting of
a stay imposed at Plaintiff’s request, the court denied Defendant Downey’s motion
on May 6, 2013, finding that a genuine issues of material fact existed as to whether
the Connelly Defendants committed malpractice by failing to call a certain witness
who would have provided a basis for the county court to find that Plaintiff’s wife
was adequately aware of the couple’s finances. (Doc. 88.)
On June 17, 2013, Defendant Downey filed a motion for judgment on
the pleadings. (Doc. 94.) Defendant Downey’s motion requested judgment in his
favor on the basis that Coleman, a December 20, 2012 Pennsylvania Superior Court
decision, made clear that Plaintiff had a viable claim against the Connelly
Defendants for all of his alleged harm at the time Plaintiff filed suit against
Defendant Downey. (Id. at p. 2 of 12.) Therefore, Defendant Downey reasons, he
cannot be the proximate cause of Plaintiff’s harm. (Id.)
On June 19, 2013, Plaintiff filed a response in opposition to Defendant
Downey’s motion (Doc. 98), as well as a motion for reconsideration related to the
court’s December 29, 2009 dismissal of the Connelly Defendants (Doc. 96). In his
motion, Plaintiff argues Coleman “held that a plaintiff may assert a breach of
contract action sounding in legal malpractice using the four year statute of
limitations for breach of contract actions.” (Doc. 98, p. 8 of 23.) Plaintiff reasons
that the Coleman decision is an “intervening change in controlling law, reveals the
need to correct a legal error, and creates a need to prevent manifest injustice.” (Id.
at p. 9 of 23.) The Connelly Defendants oppose Plaintiff’s motion. (Docs. 101 &
104-1.) The matter has been adequately briefed, and is ripe for disposition.
9
II.
Discussion
As stated, Coleman finds its way to the heart of both parties’ motions.
While the court agrees that the Pennsylvania Superior Court’s holding in Coleman
may have changed the legal landscape of legal malpractice actions sounding in
breach of contract in Pennsylvania, the changes are beyond the scope of this matter,
and Coleman provides the parties no relief.4
A.
Coleman
In Coleman, the plaintiffs’ business had accumulated $2.16 million in
unpaid employment taxes. Coleman v. Duane Morris, LLP, No. 0917, 2011 WL
5838278 (Pa. Com. Pl. Phila. Cnty. Nov. 4, 2011) (“Coleman I”). The Internal
Revenue Service held the plaintiffs personally liable for the debt. Id. In an effort to
eliminate the personal liability, the plaintiffs agreed to sell the stock in their
business to another company willing to assume the outstanding tax liability. Id.
The plaintiffs hired the defendant attorneys to help negotiate the sale. Id. The
plaintiffs claimed they were assured that their personal liability for unpaid taxes
4
Because the court will deny the parties’ motions on other grounds, it need not forecast the
position of the Pennsylvania Supreme Court based on the intermediate appellate court’s holding in
Coleman, 58 A.3d at 836. See Clark v. Modern Group, Ltd., 9 F.3d 321, 327 (3d Cir. 1993). The court
notes, however, that the Pennsylvania Supreme Court granted allowance of appeal on June 13, 2013.
See Coleman v. Duane Morris, LLP, No. 48 EAL 2013, 2013 WL 2662660 (Pa. June 13, 2013). The
issue to be addressed by the Pennsylvania Supreme Court was stated as follows:
Does the limitation on damages in a legal malpractice action sounding only in
contract set forth in Bailey v. Tucker, 533 Pa. 237, 252, 621 A.2d 108, 115
(1993) – which limited such damages to “the amount actually paid for the
services plus statutory interest” in a case involving an underlying criminal
representation – apply where the underlying representation is a civil one?
Id. (granting allowance of appeal). Thus, whether the Pennsylvania Supreme Court would in fact restrict
Bailey’s limitation on damages to just the criminal context may not be as clear as the parties represent.
(See, e.g., Doc. 98, p. 20 of 23 (“If the Pennsylvania Supreme Court were to squarely address the issue
… the Pennsylvania Supreme Court would likely reach the same result.”).)
10
would terminate upon sale of the stock. Id. Several months after closing, the
plaintiffs learned that, despite the transfer of 100-percent of the stock, they remained
personally liable for the taxes. Id.
The plaintiffs filed a legal malpractice claim, sounding in breach of
contract and not professional negligence, against the defendants, seeking to recover
damages based on the value of the stock, claiming it was sold in exchange for a
promise of release from tax liability that they did not receive. Id. The defendants
filed judgment on the pleadings, arguing that, based upon Bailey v. Tucker, 621
A.2d 108 (Pa. 1993), the plaintiffs had not suffered any recoverable damages under
Pennsylvania law because the plaintiffs did not pay for their legal services.
Relying on Bailey v. Tucker, 621 A.2d 108 (Pa. 1993), the trial court
granted the defendants’ motion for judgment on the pleadings, finding that Baily
limited damages for all breach of contract legal malpractice actions to legal fees paid
by the client plus statutory interest. Coleman I, 2011 WL 5838278; see also
Coleman v. Duane Morris, LLP, 58 A.3d 833, 836 (Pa. Super. Ct. 2012) (“Coleman
II”). In so reasoning, the trial court applied the limitation on damages set forth in
Bailey, a malpractice action arising from an attorney’s representation of a criminal
defendant, to the civil context. Coleman I, 2011 WL 5838278. On appeal, the
plaintiffs argued that, under governing contract law, they were entitled to
consequential damages for breach of contract. Coleman II, 58 A.3d at 836. In
reversing the trial court and concluding that the defendants were not entitled to
judgment on the pleadings, the Superior Court declined to follow Bailey, holding
instead that “the limitation on damages imposed by the Bailey Court applied to an
action in assumpsit based on a claim of attorney malpractice in a criminal case, but
11
that [the] limitation [did] not extend to an action for legal malpractice in assumpsit
where the underlying action was . . . a civil action.” Id. at 838. The court refused to
distinguish breach of contract damages in a legal malpractice action from breach of
contract damages in other civil cases. Id. at 838-39. Thus, the Superior Court held
that damages recoverable in a contract-based civil attorney malpractice action were
not limited solely to legal fees paid. Id. Such a holding may be significant, but not
to the matter sub judice.
B.
The Motions
The court will first resolve Plaintiff’s motion for reconsideration and
will then address Defendant Downey’s motion for judgment on the pleadings.
1.
Motion for Reconsideration
As stated, Plaintiff’s motion for reconsideration requests the court to
reconsider its December 29, 2009 order finding that Plaintiff’s claim was pleaded as
an action in tort, rather than contract, and vacate the order dismissing the Connelly
Defendants from the action on the basis that Plaintiff’s claim against the Connelly
Defendants was barred by the statute of limitations. As the basis for his request,
Plaintiff reasons that the Superior Court’s decision in Coleman constitutes an
intervening change in the law. (See Doc. 102, p. 3 of 15.) The court disagrees.
a.
Legal Standard
Although not specifically recognized by any of the Federal Rules of
Civil procedure, a motion for reconsideration may be viewed and considered under
either Rule 59(e) or 60(b). Klatch-Maynard v. Sugarloaf Tp., Civ. No. 3:06-cv0845, 2013 WL 1789744, *2 (M.D. Pa. Apr. 26, 2013); see also Jones v. Pittsburgh
Nat’l Corp., 899 F.2d 1350, 1352 (3d Cir. 1990) (“This court views a motion
12
characterized as a motion for reconsideration as the ‘functional equivalent’ of a Rule
59(e) motion to alter or amend a judgment.”). Rule 59(e) provides that any motion
to alter or amend judgment shall be filed no later than 28 days after entry of
judgment. Fed. R. Civ. P. 59(e). A motion under Rule 60(b) must be made “within
a reasonable time,” and allows the court to relieve a party from a final judgment for
reasons that justify relief. Fed. R. Civ. P. 60(b).5
A judgment may be altered or amended if the party seeking
reconsideration establishes at least one of the following grounds: “(1) an intervening
change in controlling law; (2) the availability of new evidence that was not available
when the court granted the motion . . . ; or (3) the need to correct a clear error of law
or fact or to prevent manifest injustice.” Klatch-Maynard, 2013 WL 1789744 at *2
(citing Max’s Seafood Café, by Lou Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d
Cir. 1999)). It has been often stated that “[a] motion for reconsideration is not to be
used as a means to reargue matters already argued and disposed of or as an attempt
to re-litigate a point of disagreement between the Court and the litigant,” Gaballa v.
Tanner, Civ. No. 4:11-cv-1718, 2013 WL 2949350, *2 (M.D. Pa. June 14, 2013),
nor is it a vehicle through which the litigant may raise “new arguments or present
evidence that could have been raised prior to the entry of judgment,” Hill v. Tammac
Corp., Civ. No. 1:05-cv-1148, 2006 WL 529044, *2 (M.D. Pa. Mar. 3, 2006).
5
Because the court will deny Plaintiff’s motion for reconsideration on the basis that
Coleman does not warrant reconsideration, the court need not address whether the motion was made
within a “reasonable time.” See Fed. R. Civ. P. 60(c)(1); accord Delzona Corp. v. Sacks, 265 F.2d 157,
159 (3d Cir. 1959) (holding that “what constitutes a ‘reasonable time’ depends on the circumstances of
each case”). Thus, the court need not determine whether Plaintiff’s filing of the instant motion six
months after the publication of the case upon which he relies was within a reasonable time. The court
does note, however, that Plaintiff’s explanation that his motion was made within a reasonable time
because it was filed “[l]ess than 48 hours” after Defendant Downey alerted the court to Coleman on June
17, 2013 (Doc. 102, p. 2 of 15), presents an anemic argument in support of timeliness.
13
Rule 60(b)(6) provides the court with the ability to relieve a party from
a final judgment for “any other reason” justifying relief from the operation of the
judgment. Fed. R. Civ. P. 60(b)(6). Relief under Rule 60(b)(6) is “available only in
cases evidencing extraordinary circumstances.” Mason v. Zickefoose, No. 13-1159,
2013 WL 2150912, *2 (3d Cir. May 20, 2013) (citing Martinez-McBean v. Gov’t of
the V.I., 562 F.2d 908, 911 (3d Cir. 1977)). Although some courts have recognized
that, under Rule 60(b)(6), “in the exceptional case . . . an action may be reinstated on
account of an intervening change in the law,” intervening developments in the law
themselves “rarely constitute the extraordinary circumstances required for relief
under Rule 60(b)(6).” Harper v. Vaughn, 272 F. Supp. 2d 527, 532 (E.D. Pa. 2003).
Furthermore, extraordinary circumstances will not arise when the change of case law
does not affect the integrity of the court’s earlier judgment. Importantly, a Rule
60(b) motion may not be used as a substitute for an appeal, and legal error, without
more, does not warrant relief under that provision. Selkridge v. United of Omaha
Life Ins. Co., 360 F.3d 155, 173 (3d Cir. 2004) (“Since legal error can usually be
corrected by an appeal, that factor without more does not justify the granting of
relief under Rule 60(b)(6).”).
b.
Application
Coleman does not announce a change in the law relevant to this court’s
dismissal of Plaintiff’s claims against the Connelly Defendants due to the expiration
of the statute of limitations applicable to the type of action asserted in the complaint.
Rather, the Coleman decision constitutes a change of law regarding the extent of
damages recoverable in a legal malpractice breach of contract action. To be clear,
the type of damages recoverable was not at issue for purposes of the Connelly
14
Defendants’ motion to dismiss. Plaintiff now argues Coleman shows that the
Pennsylvania Supreme Court would likely apply a four-year statute of limitations to
a legal malpractice case sounding in contract. Notably, the applicable statute of
limitations was not at issue in Coleman, and the Superior Court did not announce a
change in law in that regard. Moreover, although Plaintiff’s brief recites multiple
federal and state court cases holding that “a four year statute of limitations applies to
legal malpractice cases sounding in contract” (Doc. 98, pp. 15-18 of 23), neither the
parties nor this court have ever disputed that a legal malpractice breach of contract
claim is subject to Pennsylvania’s four-year statute of limitations. Plaintiff
apparently misunderstands the court’s December 29, 2009 decision. In that
decision, the court specifically acknowledged that “[a] plaintiff claiming breach of
contract is subject to a four-year statute of limitations,” 42 Pa. Cons. Stat. § 5525,
but clarified that “claims do not fall within the four-year [breach of] contract
limitation period merely because a contract may have existed between the parties, or
because a contract between a plaintiff and a professional obliged the professional to
exercise reasonable care.” (Doc. 29, pp. 8, 10 of 12.) In other words, the court both
recognized that a four-year statute of limitations applicable to breach of contract
actions (see Doc. 29, p. 8 of 12), and that a legal malpractice claim could be brought
under a contract theory (see id. at pp. 9, 10 of 12). However, the court found that
the allegations as set forth in the complaint failed to establish a legal malpractice
breach of contract action, because Plaintiff’s complaint failed to allege a breach of
the contract between Plaintiff and the Connelly Defendants. Plaintiff’s cause of
action clearly used tort-like language establishing duty of care, breach of that duty,
direct and proximate causation, and damages, and adequately pleaded a professional
15
negligence action, that is, a tort.6 In short, the court did not hold that it was
impossible for Plaintiff to bring a professional malpractice breach of contract action;
rather, it held that Plaintiff failed to plead a professional malpractice breach of
contract action. Accordingly, Plaintiff’s claim was not subject to the four-year
statute of limitations applicable to breach of contract actions.
Somehow, Plaintiff contends that Coleman “makes it clear that a
plaintiff does not need to point to a specific contractual provision violated by the
defendant,” and thus argues that Saferstein v. Paul, Mardinly, Durham, James,
Flandreau and Rodger, P.C., Civ. No. 96-cv-4488, 1997 WL 102521, *5 (E.D. Pa.
Feb. 28, 1997), aff’d without opinion, 127 F.3d 1096 (3d Cir. 1997), a case this court
cited in December 2009 for the proposition that “a malpractice plaintiff may not
sidestep the two-year limitation on tort actions by pleading tort claims as breaches of
contract” (Doc. 29, p. 10 of 12), is no longer good law, and the court should,
therefore, vacate its December 29, 2009 order. A closer examination of Plaintiff’s
argument, however, reveals that the case upon which he relies is actually Gorski v.
Smith, 812 A.2d 683 (Pa. Super. Ct. 2002), a case Plaintiff cited in his brief in
opposition to the Connelly Defendants’ motion to dismiss for the proposition that a
plaintiff need not plead a breach of a specific instruction to properly plead a
professional malpractice action in assumpsit. (See Doc. 6, pp. 6, 8 of 28.) In
Gorski, the Pennsylvania Superior Court stated:
6
As stated, the civil cover sheet executed by Plaintiff’s counsel made clear that the action,
as asserted, was one sounding in tort, not contract. (See Doc. 1-3.) Plaintiff’s attempt to re-characterize
the nature of his action as sounding in contract rather than tort is further belied in light of Plaintiff’s own
original description. Nevertheless, notwithstanding Plaintiff’s own classification, for both the reasons
set forth in the court’s December 29, 2009 memorandum (Doc. 29) and the reasons reiterated herein, the
court independently determines that Count I was properly asserted as a tort action.
16
[A] plaintiff’s successful establishment of a breach of
contract claim against an attorney . . . does not require
proof by a preponderance of the evidence that an attorney
failed to follow a specific instruction of the client. . . . [I]f
a plaintiff demonstrates by a preponderance of the
evidence that an attorney has breached his or her
contractual duty to provide legal service in a manner
consistent with the profession at large, then the plaintiff
has successfully established a breach of contract claim
against the attorney.
812 A.2d at 697. Gorski was decided by the Superior Court several years prior to
this court’s December 29, 2009 order, thus, it cannot be considered a change in
controlling law. Although Plaintiff now asserts the court should have followed
Gorski’s requirements rather than those set forth in Saferstein, Plaintiff chose not to
appeal the court’s December 29, 2009 decision. Of course, even assuming the court
made an error of law, it is well-settled that a Rule 60(b)(6) motion is an
inappropriate substitute for an appeal, and that a legal error, without more, does not
warrant the granting of such a motion. See Selkridge, 360 F. 3d at 173. Moreover,
Gorski is a Pennsylvania Superior Court decision, and not a Supreme Court
decision, and although the decisions of intermediate appellate courts are afforded
due weight, it is less than clear that Gorski was controlling. Indeed, even following
this court’s December 29, 2009 decision, federal courts applying Pennsylvania
substantive law to professional malpractice breach of contract actions continued to
hold that plaintiffs “may not repackage a negligence-based malpractice claim under
an assumpsit theory to avoid the statute of limitations.” See, e.g., Javaid v. Weiss,
Civ. No. 4:11-cv-1084, 2011 WL 6339838, *5-6 (citing Stacey v. City of Hermitage,
Civ. No. 2:02-cv-1911, 2008 WL 941642, *7 (W.D. Pa. Apr. 7, 2008) (“The
gravamen of the [a]mended [c]omplaint is that [the d]efendants failed to exercise the
17
appropriate standard of care and [the p]laintiff cannot repackage the claim under an
assumpsit theory to . . . avoid the two-year statute of limitations.”); IBEW Local 380
Pension Fund v. Buck Consultants, Civ. No. 03-cv-4932, 2008 WL 269476, *9 n. 5
(E.D. Pa. Jan. 30, 2008) (“Failure to perform a service with the requisite level of
professional care typically constitutes a claim of negligence, not breach of
contract.”); Storm v. Golden, 538 A.2d 61, 65 (Pa. Super. Ct. 1988) (“[A]ppellant’s
assumpsit claim is not a true contract cause of action but sounds in negligence by
alleging [that attorney] failed to exercise the appropriate standard of care.”)).
Rather, it remained consistent that, in a claim based on breach of an attorney-client
agreement, the attorney’s liability “must be assessed under the terms of the
contract.” See, e.g., Vadovsky v. Treat, Civ. No. 3:08-cv-1415, 2010 WL 2640156,
*6 (M.D. Pa. June 11, 2010) (citing Fiorentino v. Rapoport, 693 A.2d 208, 213 (Pa.
Super. Ct. 1997)). Accordingly, while there is intermediate appellate court support
for Plaintiff’s argument, the court can neither conclude it made a clear error of law
by dismissing the Connelly Defendants nor that Coleman is an intervening change in
controlling law.
Based on the foregoing, the court neither finds that Coleman constitutes
a change in the controlling applicable law, nor that the court made a clear error of
law by dismissing the Connelly Defendants. Moreover, even if it had, a Rule
60(b)(6) motion is inappropriate to challenge a such an error under the
circumstances presented herein. For these reasons, the court will deny Plaintiff’s
motion for reconsideration of its December 29, 2009 order dismissing the Connelly
Defendants.
18
2.
Motion for Judgment on the Pleadings
Defendant Downey’s motion for judgment on the pleadings accurately
notes the import of Coleman. Specifically, Defendant Downey asserts that, under
Coleman, Plaintiff was entitled, through a breach of contract action, to collect the
full amount of damages suffered, an amount no longer restricted by Bailey’s
limitation to the amount paid as attorney’s fees. (See Doc. 95, pp. 6-7 of 12.) Thus,
Defendant Downey contends, the entirety of the alleged damages, including the loss
of value of his stock, were recoverable under both negligence and breach of contract
legal malpractice claims. (Id.) Defendant reasons that, because the only difference
between the tort and contract causes of action is the applicable statute of limitations
(see Doc. 95, p. 6 of 12),7 the court erroneously found that Plaintiff’s claim was one
for tort rather than assumpsit, and that the two-year statute of limitations applied.
Based on this premise, Defendant argues that Plaintiff still had a viable claim for
breach of contract against the Connelly Defendants when he filed his complaint to
initiate these proceedings on July 6, 2009, and therefore contends that he cannot be
held to be the proximate cause of Plaintiff’s damages. In other words, Defendant
Downey argues that his failure to file a lawsuit against the Connelly Defendants was
inconsequential, because Plaintiff could have recovered the entirety of damages he
suffered due to the Connelly Defendant’s negligence at the time he initiated the
instant lawsuit. The court disagrees.
7
This statement embodies exactly what troubles the court. Specifically, if it is well-settled
that aggrieved clients may assert a professional malpractice action sounding in either breach of contract
or tort, and that the only difference is whether the claim is subject to a two- or four-year statute of
limitations, why would any plaintiff file such a claim in tort? It is this illogical consequence which
prevents the court from agreeing with either Plaintiff or Defendant Downey. (See also supra text
accompanying note 3.)
19
a.
Legal Standard
Federal Rule of Civil Procedure 12(c) allows a party to move for
judgment “[a]fter the pleadings are closed – but early enough not to delay trial.”
Fed. R. Civ. P. 12(c). Judgement on the pleadings is appropriate if “the movant
clearly establishes there are no material issues of fact, and he is entitled to judgment
as a matter of law.” Sikirica v. Nationwide Ins. Co., 416 F.3d 214, 220 (3d Cir.
2005) (citing Soc’y Hill Ass’n v. Harris, 632 F.2d 1045, 1054 (3d Cir. 1980)). In
determining a motion for judgment on the pleadings, a court considers “the
pleadings and attached exhibits, undisputedly authentic documents relied on by
plaintiffs and attached to the motion, and matters of public record.” Sportscare of
Am., P.C. v. Multiplan, Inc., Civ. No. 2:10-cv-4414, 2013 WL 1661018, *8 (D.N.J.
Apr. 17, 2013) (citing Atiyeh v. Nat’l Fire Ins. Co. of Hartford, 742 F. Supp. 2d 591,
595 (E.D. Pa. 2010)). As with a motion to dismiss and motion for summary
judgment, the court must view the facts and the inferences drawn therefrom in the
light most favorable to the nonmoving party, and determine whether the pleadings
show that the plaintiff can prove no set of facts in support of his claim which would
entitle him to relief. Sikirica, 416 F.3d at 220.
b.
Application
Viewing the facts in the light most favorable to Plaintiff as the nonmoving party, the court is unable to conclude Defendant Downey is entitled to
judgment as a matter of law. In reaching its conclusion, the court notes the
following. First, as stated, the cause of action against the Connelly Defendants
asserted in Plaintiff’s complaint, judged by its substance rather than its label,
supported a claim for professional negligence: a tort subject to Pennsylvania’s two20
year statute of limitations. The allegations contained in Plaintiff’s complaint did not
support a claim for breach of contract, as there is no allegation that the Connelly
Defendants violated any contractual term.8 Thus, whether Plaintiff could have
asserted a breach of contract action against the Connelly Defendants based on their
failure to call certain witnesses at the August 4, 2004 hearing is not clear from the
record; however, the record is clear that Plaintiff’s complaint did not assert such an
action.9
Moreover, the pleadings do not otherwise compel a conclusion that
Plaintiff’s claims sounding in tort against the Connelly Defendants were barred
8
As stated above, the court acknowledges that, according to the Pennsylvania Superior
Court, “there automatically arises a contractual duty on the part of the attorney to render . . . legal
services in a manner that comports with the profession at large” when an attorney enters into a contract
to provide legal services, and therefore, “a breach of contract claim may properly be premised on an
attorney’s failure to fulfill his or her contractual duty to provide the agreed upon legal services in a
manner consistent with the profession at large.” Gorski, 812 A.2d at 694. Nevertheless, without the
Pennsylvania Supreme Court directly addressing the issue, the court finds more persuasive the reasoning
set forth in Saferstein, 1997 WL 102521 at *5, which was recently reiterated in Javaid, 2011 WL
6339838 at *5. As the Javaid court stated, “[I]f allegations of a contractual relationship between
plaintiff and defendants, and of an express or implied term of the contract establishing an obligation to
exercise reasonable care, were to suffice to state a breach-of-contract malpractice case, the two year
limitations statute for tort actions would be a dead letter in . . . malpractice cases.” Javaid, 2011 WL
6339838 at *6 (quoting Sherman Indus., Inc. v. Goldhammer, 683 F. Supp. 502, 506 (E.D. Pa. 1988)).
9
At the risk of being repetitive, but for the sake of being clear, the court did not parse
through the record to determine whether the Connelly Defendant’s actions could have supported a claim
for legal malpractice based on the terms of the contract. All the court determined was that Plaintiff’s
complaint alleging that the Connelly Defendants “acted in deviation from the standard of care of a
reasonable attorney and breached their duties they owed to [Plaintiff]” failed to adequately set forth a
breach of contract claim. (See Doc. 29, p. 9 of 12 (citing Doc. 1, ¶ 65).) Thus, while the court
recognized aggrieved clients may bring a breach of contract action against their former attorneys for
legal malpractice, the court simply determined Plaintiff’s claim, as pleaded, was one for professional
negligence, not breach of contract. Thus, the law of the case is not that Plaintiff did not have a valid
breach of contract claim against the Connelly Defendants. (See Doc. 95, ¶¶ 9-10 of 12.) If anything, the
law of the case in this regard is that Plaintiff did not assert a valid breach of contract claim against the
Connelly Defendants. Indeed, the court only determined whether a breach of contract claim was
adequately pleaded; it never determined whether such a claim existed based on the Connelly Defendant’s
actions.
21
when he first sought the assistance of Defendant Downey. Whether Plaintiff’s
professional negligence claims against the Connelly Defendants were already barred
at the time Defendant Downey owed to Plaintiff a duty of care will depend on the
date of accrual of Plaintiff’s legal malpractice claim against the Connelly
Defendants, which remains a genuine issue of material fact.10 Thus, it is not clear
whether Plaintiff had a claim directly available against the Connelly Defendants
other than the professional negligence claim that Defendant Downey never filed,
despite his being specifically retained to do so.11 By way of example and assuming,
arguendo, that the Connelly Defendants were negligent in failing to call certain
witnesses at the August 2, 2004 hearing, and that Plaintiff did not realize his injury
until Judge Morrow’s July 7, 2005 order invalidating the PSA, Plaintiff had a viable
professional negligence claim to assert against the Connelly Defendants as late as
July 9, 2007, which postdates Plaintiff’s retaining Defendant Downey. In that case,
Defendant Downey’s failure to file a claim before that date would have caused
Plaintiff’s otherwise valid claims to be barred by the two-year statute of limitations
applicable to tort actions. Given these questions of material fact, it can hardly be
said that Defendant Downey is entitled to judgment as a matter of law.
10
In reversing this court’s grant of summary judgment in favor of Defendant Downey, the
Third Circuit held that “reasonable minds could disagree in determining whether [Plaintiff] knew or
should have known, through the exercise of reasonable diligence, of his alleged injury as early as August
2, 2004.” (Doc. 37-1, p. 27 of 28.) Of course, if Plaintiff did not know of his alleged injury until July 7,
2005, the date on which the order invalidating the PSA was entered, the date of accrual of Plaintiff’s
action against the Connelly Defendants benefits from nearly an additional year.
11
The Contingent Fee Agreement, attached to Plaintiff’s complaint at Exhibit E,
specifically states that “[Plaintiff] retains [Defendant Downey] to institute, prosecute, negotiate and
compromise claims or actions as may be deemed advisable by [Defendant Downey] in [Plaintiff]’s best
interest to recover damages from [the Connelly Defendants].” (Doc. 1, Ex. E.)
22
To reiterate, the facts, when viewed in the light most favorable to
Plaintiff, establish that: (1) the Connelly Defendants were professionally negligent
in failing to call witnesses at the August 2, 2004 hearing; (2) Plaintiff did not
discover his injury until Judge Morrow’s July 7, 2005 order invalidating the PSA;
(3) Plaintiff contacted Defendant Downey on July 31, 2006; (4) Plaintiff retained
Defendant Downey to “institute, prosecute, negotiate and compromise claims to
recover damages from [the Connelly Defendants]” on March 30, 2007; (5) the
statute of limitations on Plaintiff’s professional negligence action against the
Connelly Defendants expired on July 9, 2007; and (6) Defendant Downey did not
file the claim contemplated by the March 30, 2007 agreement. In light of these
facts, Plaintiff may have had a viable professional negligence claim against the
Connelly Defendants, a claim that Defendant Downey never filed. Therefore, it is
not clear that Defendant Downey is entitled to judgment as a matter of law on the
pleadings. Accordingly, the court will deny Defendant Downey’s motion.
III.
Conclusion
In short, the court reiterates that (1) Plaintiff’s complaint failed to
adequately plead a legal malpractice breach of contract action against the Connelly
Defendants; and (2) Plaintiff’s negligence claim against the Connelly Defendants
was barred by Pennsylvania’s two-year statute of limitations as late as July 9, 2007.
In addition, the court finds, for the purposes of the instant motions, that (3) Coleman
does not constitute a controlling change in applicable law; (4) Plaintiff retained
Downey before the two-year statute of limitations applicable to a professional
negligence action against the Connelly Defendants expired; and (5) Defendant
23
Downey never filed a legal malpractice action against the Connelly Defendants,
despite his being specifically retained to do so. Accordingly, the court will deny
both Plaintiff’s motion for reconsideration and Defendant Downey’s motion for
judgment on the pleadings.
Two orders in accordance with the foregoing will be docketed
separately.
S/SYLVIA H. RAMBO
United States District Judge
Dated: August 5, 2013.
24
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