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finding "'substantial grounds for difference of opinion' . . . where there are conflicting interpretations from numerous courts"
Summary of this case from Physicians HealthSource, Inc. v. Janssen Pharms., Inc.Opinion
Civil No. 1:09–CV–1287.
2013-10-21
Nicholas KNOPICK, Plaintiff v. Philip A. DOWNEY, Defendant.
Joshua M. Autry, Clymer, Musser & Conrad, P.C., Lancaster, PA, for Plaintiff. Robert W. Sink, Law Offices of Robert W. Sink, Philadelphia, PA, William F. McMurry, William F. McMurry and Associates, Louisville, KY, for Defendant.
Joshua M. Autry, Clymer, Musser & Conrad, P.C., Lancaster, PA, for Plaintiff. Robert W. Sink, Law Offices of Robert W. Sink, Philadelphia, PA, William F. McMurry, William F. McMurry and Associates, Louisville, KY, for Defendant.
MEMORANDUM
SYLVIA H. RAMBO, District Judge.
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, 2009 WL 5214975, 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. Facts
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.
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 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 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. 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:
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.)
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.
* * *
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 applicable two-year statute of limitations 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:
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.)
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. (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.)
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. 37–1, 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 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.
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.
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, 68 A.3d 328 (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.”).)
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 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, 533 Pa. 237, 621 A.2d 108 (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, 533 Pa. 237, 621 A.2d 108 (1993), the trial court granted the defendants' motion for judgment on the pleadings, finding that Bailey 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 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–cv–0845, 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 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).
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.” SeeFed.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.
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 Cafe, 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).
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, 525 Fed.Appx. 81, 83–84 (3d Cir.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 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 negligence action, that is, a tort. 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.
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.
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 propositionthat 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:
[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 (M.D.Pa. Dec. 19, 2011) (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 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, 371 Pa.Super. 368, 538 A.2d 61, 65 (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 challengea 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.
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), 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.
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.)
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 non-moving 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 two-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. 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.
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)).
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.
Moreover, the pleadings do not otherwise compel a conclusion that Plaintiff's claims sounding in tort against the Connelly Defendants were barred 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. Thus, it is not clear whether Plaintiffhad 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. 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.
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.
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.)
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 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.
MEMORANDUM
In this legal malpractice action, Plaintiff has sued two sets of his former attorneys, alleging that the first group of attorneys committed legal malpractice related to their representation of Plaintiff in connection with a property settlement agreement, and that Defendant Downey, whom he engaged to prosecute a legal malpractice action against the first group of attorneys, committed legal malpractice in his failure to properly advance that claim. Presently before the court is a motion for leave to file an interlocutory appeal pursuant to 28 U.S.C. 1292(b), which was filed by Defendant Downey and not opposed by Plaintiff. (Doc. 112.) The motion requests this court to certify its August 5, 2013 order denying Defendant Downey's motion for judgment on the pleadings as an appealable interlocutory order. (Doc. 109.) For the following reasons, Defendant Downey's motion will be denied.
I. Background
This case has been the matter of four separate memoranda addressing dispositive motions filed by the parties in this case. ( See generally Doc. 29 (granting Connelly Defendants' motion to dismiss); Doc. 32 (granting Defendant Downey's motion for summary judgment); Doc. 88 (denying Defendant Downey's second motion for summary judgment following remand); Doc. 107 (denying Defendant Downey's motion for judgment on the pleadings and Plaintiff's motion for reconsideration).) Because the court writes primarily for the parties, it will not set forth the entirety of the factual and procedural history. The court will, however, highlight key facts relevant to its consideration of the instant motion.
Plaintiff initiated this action on July 6, 2009, by filing a complaint invoking this court's diversity jurisdiction. The complaint, which as highlighted in the court's most recent memorandum, identified the nature of the suit as one sounding in tort. Nevertheless, the complaint contained three counts, namely a breach of contract claim against the Connelly Defendants in connection with their state court representation of Plaintiff in the property settlement agreement (“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.
* * *
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 applicable two-year statute of limitations 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:
The court found that the two-year statute of limitations for legal malpractice claims applied to Plaintiff's claim against the Connelly Defendants, finding that Plaintiff's claim against the Connelly Defendants sounded in trespass rather than assumpsit. ( See Doc. 29, pp. 9–10 of 12.)
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 [rather than 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. (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.)
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.)
The Third Circuit did not 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.” (Doc. 37, p. 9 n. 8 of 28.)
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.) The court denied Defendant Downey's motion on May 6, 2013, finding that a genuine issue 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 v. Duane Morris, LLP, 58 A.3d 833 (Pa.Super.Ct.2012), perm. app. granted,68 A.3d 328 (Pa.2013), 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 reasoned, he could not be the proximate cause of Plaintiff's harm. ( Id.) On June 19, 2013, Plaintifffiled 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 argued 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 reasoned that the Coleman decision was an “intervening change in controlling law, reveal [ed] the need to correct a legal error, and create[d] a need to prevent manifest injustice.” ( Id. at p. 9 of 23.)
On August 5, 2013, the court denied both motions. (Docs. 108 & 109.) In the memorandum entered in support of the orders, the court explained that Coleman did not constitute a change in controlling law applicable to the action, but rather acknowledged a 2002 Pennsylvania Superior Court case, Gorski v. Smith, 812 A.2d 683 (Pa.Super.Ct.2002), which was “decided by the Superior Court several years prior to this court's December 29, 2009 order.” (Doc. 107, p. 17 of 24.) Finding that Coleman did not constitute a change in controlling law and finding that the court did not commit clear legal error in dismissing Plaintiff's legal malpractice claim against the Connelly Defendants in December 2009, the court denied Plaintiff's motion for reconsideration. ( Id. at p. 18 of 24.) Furthermore, upon consideration of the facts taken in the light most favorable to Plaintiff, the court found, for purposes of addressing the motions, the record established 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. (Doc. 107, p. 23 of 24.) Therefore, the court concluded Plaintiff may have had a viable professional negligence claim against the Connelly Defendants that Defendant Downey never filed despite being retained to do so. The court accordingly denied Defendant Downey's motion for judgment on the pleadings. (Docs. 107 & 108.)
On August 20, 2013, Defendant Downey filed the instant motion, requesting the court certify its August 5, 2013 order for an interlocutory appeal. (Doc. 112.) In his brief in support, Defendant Downey acknowledges the import of Gorski, and argues that it presents a controlling question of law. (Doc. 113, p. 4 of 6.) Plaintiff concurs with Defendant Downey's motion. (Doc. 115.) The issue has been adequately briefed and is now ripe for consideration.
Despite Defendant Downey requesting the court certify for an interlocutory appeal its order denying his motion for judgment on the pleadings on the basis that the record did not entitle him to judgment as a matter of law, it appears he is truly requesting appellate review of this court's answer to whether Pennsylvania law permits a plaintiff to plead a legal malpractice action sounding in assumpsit on the basis that the defendant breached the standard of care an attorney generally owes to a client. This was the issue addressed in the court's December 29, 2009 memorandum and underlay the court's dismissal of the Connelly Defendants.
II. Discussion
Under Section 1292(b), the court can certify a non-final order for interlocutoryappeal if the order “involves (1) a controlling question of law (2) as to which there is substantial ground for difference of opinion and (3) that an immediate appeal from the order may materially advance the ultimate termination of the litigation.” 28 U.S.C. § 1292(b) (numbering added). Even if the moving party satisfies the statutory criteria, the district court “possesses discretion to deny certification of an [interlocutory] appeal.” In re Chocolate Confectionary Antitrust Litig., 607 F.Supp.2d 701, 708 (M.D.Pa.2009) (citing Bachowski v. Usery, 545 F.2d 363, 368 (3d Cir.1976)). An interlocutory appeal should be reserved for “exceptional cases.” Caterpillar Inc. v. Lewis, 519 U.S. 61, 74, 117 S.Ct. 467, 136 L.Ed.2d 437 (1996) (quotation marks and citation omitted); Sabree v. Williams, Civ. No. 06–cv–2164, 2008 WL 4534073, *1 (D.N.J. Oct. 2, 2008) (“[A] district court should exercise this discretion and certify issues for interlocutory appeal only sparingly and in exceptional circumstances.”).
In determining whether an order presents a controlling question of law, the court must look to whether (1) an incorrect disposition would constitute reversible error if presented on final appeal; or (2) if the question is so “serious to the conduct of the litigation either practically or legally.” Katz v. Carte Blanche Corp., 496 F.2d 747, 755 (3d Cir.1974) (“A controlling question of law must encompass at the very least every order which, if erroneous, would be reversible error on final appeal.”). “[S]ubstantial ground for difference of opinion” exists when the matter involves “one or more difficult and pivotal questions of law not settled by controlling authority.” Knipe v. SmithKline Beecham, 583 F.Supp.2d 553, 599 (E.D.Pa.2008) (citing McGillicuddy v. Clements, 746 F.2d 76, 76 n. 1 (1st Cir.1984)); see also Cuttic v. Crozer–Chester Med. Ctr., 806 F.Supp.2d 796, 804–05 (E.D.Pa.2011) (“[S]ubstantial grounds for difference of opinion exist where there is general doubt or conflicting precedent as to the correct legal standard.”). The clearest evidence of “substantial grounds for difference of opinion” is where “there are conflicting interpretations from numerous courts.” Beazer E., Inc. v. The Mead Corp., Civ. No. 91–0408, 2006 WL 2927627, *2 (W.D.Pa. Oct. 12, 2006). In terms of determining whether an appeal would materially advance the ultimate termination of litigation, courts look to “(1) whether the need for trial would be eliminated; (2) whether the trial would be simplified by the elimination of complex issues; and (3) whether discovery could be conducted more expeditiously and at less expense to the parties.” Patrick v. Dell Fin. Servs., 366 B.R. 378, 387 (M.D.Pa.2007); See Cuttic, 806 F.Supp.2d at 805. On the other hand, where discovery has been ongoing and the case is nearly ready for trial, “an interlocutory appeal can hardly advance the ultimate termination of the litigation.” Bradburn Parent Teacher Store v. Minn. Mining & Mfg. Co., Civ. No. 02–7676, 2005 WL 1819969, *4 (E.D.Pa. Aug. 2, 2005).
Assuming, without deciding, that the first two requirements of Section 1292(b) are satisfied, the certification requestfails on the third criterion. Defendant Downey argues that a “favorable ruling on appeal would terminate the litigation against [Defendant] Downey.” (Doc. 113, p. 5 of 6.) Even if true, this factor asks the court to assess whether the immediate appeal may materially advance the “ultimate termination of the litigation.”28 U.S.C. § 1292(b) (emphasis supplied). The litigation will not terminate if the Third Circuit determines that, under Pennsylvania law, a plaintiff can assert a legal malpractice cause of action sounding in assumpsit by alleging the defendant-attorney breached the general standard of care owed by attorneys to their clients. Regardless of the appellate decision, Defendant Downey will still remain in the case, and will continue defending the professional negligence claim. Thus, contrary to Defendant Downey's argument, a favorable ruling will not materially advance the ultimate termination of this litigation. In the court's view, a favorable ruling may, in fact, have an opposite effect.
There is serious question as to whether either of these requirements are satisfied. As to the first requirement, the court notes that its December 29, 2009 decision dismissing the Connelly Defendants may have presented an issue of controlling law, but the August 5, 2013 decision did not; rather, the August 5, 2013 decision simply denied Plaintiff's motion for reconsideration and Defendant Downey's motion for judgment on the pleadings. Neither issue addressed in that memorandum “would be reversible error on final appeal.” See28 U.S.C. 1292(b). As to the second requirement, federal courts have consistently held that a plaintiff may not repackage a legal negligence claim into one sounding in breach of contract simply by skillful pleading. Moreover, in Steiner v. Markel, 600 Pa. 515, 968 A.2d 1253 (Pa.2009), a legal malpractice case involving property erroneously described in a deed, the Pennsylvania Supreme Court was faced with a statute of limitations issue. The court's decision focused upon other issues, but in his dissent, Justice Saylor asserted that the court should have taken the opportunity to clarify the “disordered area of the law” in which legal malpractice claims may be stated under either contract or tort theories. In his dissent, Justice Saylor recognized that federal courts have “effectively predicted” that the Pennsylvania Supreme Court would require the plaintiff allege a breach of a particular contractual provision, and stated as follows:
[A] substantial, underlying conceptual problem in this case is that this Court has not detailed the elements of a contract-based cause of action for legal malpractice in a fashion which would meaningfully distinguish them from those necessary to support a tort-based cause. Indeed, the discussion of a contract-based cause in Bailey v. Tucker, 533 Pa. 237, 621 A.2d 108 (1993), suggests the elements of tort- and contract-based causes of action in this setting overlap substantially, if not completely. See id. at 251–52, 621 A.2d at 115[;s] ee generally 3 West's PA. PRAC., TORTS: LAW AND ADVOCACY § 6:29 (2008) (suggesting that, if Bailey is adhered to on its terms, “any distinction between contract and tort claims is practically meaningless” and plaintiffs, by mere skillful pleading may avail themselves of the longer limitations period). A counter-position has developed in the federal courts, which have effectively predicted this Court would require averment of a breach of some particular provision of the agreement of representation, or a failure to follow specific client instructions, to support a contract-based claim. See, e.g., Stacey v. City of Hermitage, 2008 WL 941642, *4 (W.D.Pa. Apr. 7, 2008); see also Edwards v. Thorpe, 876 F.Supp. 693, 694 (E.D.Pa.1995). In light of such enhanced requirement for contract-based pleading, these courts have admonished, “a plaintiff may not repackage a negligence-based malpractice claim under an assumpsit theory to avoid the statute of limitations.” Stacey, 2008 WL 941642, at *5.
Steiner, 968 A.2d at 1262 (Saylor, J., dissenting).
Plaintiff has abandoned his contract claim against Defendant Downey. ( See supra n. 2 (citing Doc. 37, p. 9 n. 8 of 28).)
Lastly, the court would be remiss not to note the impropriety of certifying the dismissal of the Connelly Defendants for an interlocutory appeal. The December 29, 2009 order extinguished Plaintiff's claim against the Connelly Defendants. Plaintiff neither sought leave to file an amended complaint nor appealed the court's decision. Clearly, the issue for which the parties now desire appellate review is the issue upon which the court's December 29, 2009 decision turned. This request comes over three years after the entry of the order of which the parties complain. The request is not only untimely, but made with the significant consequence of delaying final adjudication of the matter on the merits.
Again, although Defendant Downey asks the court to certify its August 5, 2013 order regarding his motion for judgment on the pleadings for an interlocutory appeal, it is clear that the true issue for which both Defendant Downey and Plaintiff desire an appellate opinion concerns the court's 2009 dismissal of the Connelly Defendants, finding that the cause of action pleaded by Plaintiff in the complaint sounded in trespass rather than assumpsit.
III. Conclusion
Even assuming, arguendo, that the issue for which the parties request the court certify for an interlocutory appeal presents a controlling question of law as to which there is substantial ground for difference of opinion, the court cannot find that an immediate appeal would materially advance the ultimate termination of the litigation. Accordingly, the court declines to certify its August 5, 2013 order for an interlocutory appeal, and will deny Defendant Downey's motion.
An appropriate order will issue.
ORDER
In accordance with the accompanying memorandum of law, IT IS HEREBY ORDERED that Defendant Downey's motion requesting this court certify its August 5, 2013 order denying Defendant Downey's motion for judgment on the pleadings for an interlocutory appeal pursuant to 28 U.S.C. § 1292(b) (Doc. 112) is DENIED.
The deadlines set forth in the most recent case management order (Doc. 93) remain in effect.