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PALOMBA v. BARISH

December 13, 1985

ANTONIO PALOMBA, et al.
v.
MARVIN I. BARISH, et al.



The opinion of the court was delivered by: KELLY

 KELLY, J.

 Presently before this court is defendant, Robert C. Daniels' motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Defendant Daniels has submitted for my consideration of the motion to dismiss, affidavits of his counsel, Neil Witkes and his own affidavit. Daniels seeks to invoke that portion of Rule 12(b)(6) *fn1" which mandates conversion of a motion to dismiss to a summary judgment where (1) a party submits material outside the pleading for the court's consideration, and (2) the court considers such material in making its decision.

 Plaintiffs, a group of seamen, were allegedly injured while the vessel they were on was in navigable waters of the Atlantic Ocean. Plaintiffs engaged the defendant law firm of Adler, Barish, Daniels, Levin & Creskoff (Adler-Barish) to represent them in their action against the ship for damages. Defendant, Marvin Barish, a partner of Adler-Barish was the attorney who handled plaintiffs' claims.

 The court which was presiding over the plaintiffs' action against the ship dismissed certain of the plaintiffs' *fn2" claims (hereinafter "dismissed plaintiffs") because dismissed plaintiffs were not produced for deposition and medical examination and plaintiffs' expert witness medical reports were not furnished for the steamship company as required by an order entered and agreed to by counsel. The remaining plaintiffs' *fn3" claims (hereinafter "limited plaintiffs") were allowed to proceed to trial as to damages, *fn4" but a key expert witness was prohibited from testifying on behalf of the limited plaintiffs due to the alleged failure of defendant, Marvin Barish to make the expert witnesses reports available to the steamship company's counsel.

 Plaintiffs here allege they suffered injury due to the alleged malpractice of defendant attorneys who had represented them in their claim against the steamship company.

 In Count I of the complaint the dismissed plaintiffs assert that because of the negligence of the defendants in the preparation and handling of their claims, they were prejudiced and lost the right to recover damages against the steamship company.

 In Count II of the complaint the limited plaintiffs assert that because of the negligence of the defendants they were injured because they were deprived of putting into evidence material and testimony which would have benefited them in their attempt to establish damages.

 Count III of the complaint asserts a claim on behalf of all plaintiffs for punitive damages against the defendants for "continual and flagrant disregard of agreed upon scheduling orders". Complaint para. 41.

 I have jurisdiction over plaintiffs' action because of diversity of the parties. Accordingly, I must apply Pennsylvania state law. Pennsylvania law is clear that the negligence of one partner acting in the ordinary course of the business of the partnership will be imputed upon the non-acting partners, making the non-acting partners jointly and severally liable for the negligence. Pa. C. Stat. Ann. Title 59 § 325 & § 327 (Purdon Supp. 1985). *fn5"

 Defendant Daniels has contended that he was forced out of Adler-Barish, thus dissolving the partnership two years prior to the time of the purported negligence which give rise to plaintiffs' claims. While plaintiffs have alleged negligence on behalf of all defendant attorneys, they assert that defendant Marvin Barish was the firm's representative which they dealt with.

 A party who has prior dealings with a partnership and without knowledge *fn6" of a subsequent dissolution of the partnership, and continues to deal with a partner can hold liable the former partners of the dissolved partnership. Pa. Stat. Ann. Title 59 § 357. *fn7"

 An action of malpractice by an attorney can generally be based upon either tort or contract theory. Goggin, Attorney Negligence . . . A Suit Within a Suit, 60 W. Va. L. Rev. 225 (1958). The action brought by plaintiffs here appears to rest upon tort theory for recovery. Generally a tort by one partner occurring subsequent to dissolution of a partnership cannot be imputed upon the former partners, unless the party who committed the tort was winding up the partnership affairs or completing partnership business. A partner who has not, inter alia, wrongfully dissolved the partnership has the right to wind up the partnership affairs. Pa. Stat. Ann. Title 59 § 359. *fn8" Because no pleadings or material submitted to the court have expressed that ...


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