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GREGORY TRICE v. ROBERT B. MOZENTER (09/11/86)

filed: September 11, 1986.

GREGORY TRICE, APPELLANT
v.
ROBERT B. MOZENTER



Appeal from the Order of the Court of Common Pleas, Civil Division, of Philadelphia County at No. 1375, August Term, 1984.

COUNSEL

Andrew J. Jackson, Philadelphia, for appellant.

Ernest Iannelli, Philadelphia, for appellee.

Beck, Popovich and Hoffman, JJ.

Author: Popovich

[ 356 Pa. Super. Page 511]

This is an appeal from the order of the Court of Common Pleas of Philadelphia County granting a motion for judgment on the pleadings against the plaintiff/appellant, Gregory Trice. We affirm.

Under Pa.R.Civ.P. 1034, a motion for judgment on the pleadings may be granted in cases which are so free from

[ 356 Pa. Super. Page 512]

    doubt that a trial would clearly be a fruitless exercise. Such a motion is in the nature of a demurrer; all of the opposing party's well-pleaded allegations are viewed as true, but only those facts specifically admitted by him may be considered against him. In making this determination, a court is to consider only the pleadings themselves and any documents properly attached thereto. Moore v. McComsey, 313 Pa. Super. 264, 459 A.2d 841 (1983).

So viewed, the record indicates that in October of 1974, the plaintiff secured the services of Attorney Robert B. Mozenter to defend him in a criminal matter to be tried in the United States District Court for the Eastern District of Pennsylvania. The end result was plaintiff's conviction and sentence for fifteen (15) years imprisonment, which he immediately began serving.

The conviction was affirmed without opinion by the Third Circuit Court of Appeals in 1976. Four years later, plaintiff's petition for a writ of habeas corpus, alleging that he had been inadequately assisted by counsel at trial, was found by the same Court to warrant an evidentiary hearing. Following that proceeding, the District Court entered a ruling finding that, albeit trial counsel had been ineffective, the plaintiff had not been prejudiced by counsel's conduct. On appeal, the Third Circuit reversed and remanded for a new trial. It did so on the basis that trial counsel had been ineffective in failing to conduct an investigation designed to reveal whether a voice exemplar (purportedly of the plaintiff) and an intercepted recording (the sole evidence linking the plaintiff to the crimes charged) contained the same voice. It was this nonfeasance which the Third Circuit concluded prejudiced Trice because:

[ 356 Pa. Super. Page 513]

    breach of contractual duty by Mozenter, he (the plaintiff) was aware of the same by March 25, 1975 (sentencing date), February 17, 1977 (initial appeal of sentence affirmed), October 31, 1978 (date affidavit in support of Motion To Vacate Judgment signed by the plaintiff), November 3, 1978 (date Memorandum in support of Motion To Vacate Judgment filed), June 30, 1980 (per curiam opinion of Third Circuit remanding for ineffectiveness hearing at 622 F.2d 66), or March 30, 1980 (Memorandum Opinion of District Court denying ineffectiveness claims). Any one of the aforementioned points in time would, as viewed by Mozenter, bar the plaintiff's cause of action as violative of the statutes of limitations as set forth in 42 Pa.C.S. § 5524(2) (providing a two-year limitation ...


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