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filed: April 28, 1987.


Appeal from the Judgment Entered June 19, 1986 in the Court of Common Pleas of Philadelphia County at No. 1003 October Term, 1983.


Daniel A. Rendine, Philadelphia, for appellant.

Janel W. Mason, Assistant Public Defender, Philadelphia, for appellee.

Cirillo, President Judge, and Tamilia and Cercone, JJ.

Author: Cirillo

[ 362 Pa. Super. Page 487]

This is an appeal from the grant of defendant's motion for summary judgment by the Court of Common Pleas of Philadelphia based on a statute of limitations defense in an action alleging legal malpractice. We affirm.

Appellant, Santos Garcia, owns a home in Philadelphia which allegedly was damaged through demolition work at an adjacent property during November, 1977. Appellee, Community Legal Services Corporation (CLS), represented Mrs. Garcia in her attempts to recover for the property damage. She later retained a private attorney, Jack M. Bernard, who instituted suit on April 2, 1981 against the company which had performed the demolition work.

The statute of limitations for trespass to real property was three years until the legislature shortened the period to two years, effective June 27, 1978. The new statute provided that, wherever the limitation period was reduced, an action must be brought within one year after the effective date of the statute or the period provided for under the old statute, whichever is less. Therefore, the statute expired on Mrs. Garcia's claim on June 27, 1979.

During that time period, she was represented by CLS. She later retained Mr. Bernard, who filed suit in April, 1981 because he felt that it was possible to make a viable legal argument that the statute applicable to Mrs. Garcia's claim was 42 Pa.C.S. § 5536, which provided a twelve year period to file claims. However, on August 28, the Superior Court filed a decision holding that § 5536 was a statute of repose with no effect upon the provisions of § 5524. See Mitchell, v. United Elevator Co. Inc., 290 Pa. Super. 476, 434 A.2d 1243 (1981). Based on Mitchell, the trial court dismissed Mrs. Garcia's action on October 2, 1981 as barred by the statute of limitations. Bernard was notified by the court of the entry of judgment against his client on October 5, 1981. He then mailed Garcia a letter explaining the court's action. However, because she does not read English, Garcia was allegedly unaware of the contents of the letter until it was translated for her on October 19, 1981.

[ 362 Pa. Super. Page 488]

Mrs. Garcia commenced the present action on October 6, 1983. She filed a complaint in trespass, alleging that CLS acted negligently in failing to bring an action to recover for the damage to her home before the applicable statute of limitations expired.

CLS filed a motion for summary judgment, asserting that Mrs. Garcia's malpractice claim was governed by a two year statute of limitation (42 Pa.C.S. § 5524). They claimed that her action should have been brought no later than two years after October 2, 1981, the date summary judgment was entered in the earlier proceeding. The trial court granted the motion and Mrs. Garcia appealed to this court.

Appellant presents two issues for our review: (1) whether the trial court erred in holding that the two year statute of limitation applies to her claim for legal malpractice; and, (2) whether the trial court erred in granting summary judgment because there is a genuine issue of material fact as to when the appellant reasonably discovered the existence of her malpractice claim. Because of our disposition of this matter, we need not address these issues separately.

Mrs. Garcia argues that the trial court erred in dismissing her action. She claims that the relevant statute of limitations is either the four year period of 42 Pa.C.S.A. 5525(4) or the six year period of 42 Pa.C.S. § 5527(6). Section 5524(4) is applicable to implied contracts while § 5527(6) is a catchall provision for all civil actions not subject to a specific statute of limitation. CLS asserts that we should apply the two year period specified in § 5524. This section provides in pertinent part:

The following actions and proceedings must be commenced within two years: . . . (3) An action for taking, detaining or injuring personal property . . . .

42 Pa.C.S.A. § 5524(3).

Mrs. Garcia counters that even if we apply the two year period of § 5524, the statute was tolled until October 12, 1981 because that is when she was first able to reasonably discover that she possessed a cause of action against CLS. Because her claim was instituted on October 6, 1983, she

[ 362 Pa. Super. Page 489]

    argues that it was timely filed within two years of the date the statute started to run.

An action for legal malpractice may be brought in either contract or tort. Guy v. Liederbach, 501 Pa. 47, 55, 459 A.2d 744, 748, (1983). See also Trice v. Mozenter, 356 Pa. Super. 510, 520, 515 A.2d 10, 15 (1986); Hoyer v. Frazee, 323 Pa. Super. 421, 425, 470 A.2d 990, 992 (1984) Duke & Co. v. Anderson, 275 Pa. Super. 65, 70, 418 A.2d 613, 616 (1980).

But, at the time Mrs. Garcia instituted the present suit against CLS, the applicable Pennsylvania rules of pleading provided in pertinent part:

If a transaction or occurrence or a series of transactions or occurrences gives rise to causes of action in assumpsit and trespass against the same person . . . they shall be joined in an action against any such person in separate counts. Each count shall specify whether ...

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