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filed: May 6, 1988.


Appeal From Judgment Entered July 15, 1987, Court of Common Pleas, Civil Division, Philadelphia County No. 588 December Term 1984.


Leonard Sarner, Philadelphia, for appellants.

Jeffrey B. Albert, Philadelphia, for Tinari, appellee.

Gordon Gelfond, Philadelphia, for Gorbey, appellee.

Cavanaugh, Rowley and Popovich, JJ.

Author: Cavanaugh

[ 374 Pa. Super. Page 21]

The primary issue in this case is whether a civil malpractice action against attorneys is barred where the federal court, in which the underlying criminal case was tried, has previously determined that counsel was not ineffective. The court below granted summary judgment in favor of the

[ 374 Pa. Super. Page 22]

    defendants below, Nino V. Tinari, Esquire and Timothy Gorbey, Esquire, the appellees herein, and we affirm.

With respect to a motion for summary judgment, Pa.R.C.P. 1035(b) provides that such judgment may be entered if pleadings, depositions, answers to interrogatories, admissions and affidavits show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See Helinek v. Helinek, 337 Pa. Super. 497, 487 A.2d 369 (1985); Loyal Christian Benefit Association v. Bender, 342 Pa. Super. 614, 493 A.2d 760 (1985). A summary judgment should only be entered in those cases which are clear and free from doubt. Weiss v. Keystone Mack Sales, Inc., 310 Pa. Super. 425, 456 A.2d 1009 (1983). The court must accept as true all well-pleaded facts in the non moving party's pleadings, and give the non moving party the benefit of all reasonable inferences to be drawn therefrom. Spain v. Vicente, 315 Pa. Super. 135, 461 A.2d 833 (1983); Metal Bank of America v. Insurance Company of North America, 360 Pa. Super. 350, 520 A.2d 493 (1987). However, a prima facie showing by the parties seeking summary judgment, i.e., the production of enough evidence to demonstrate such parties entitlement to a judgment if the evidence were uncontroverted at trial, shifts the burden of producing evidence to the party opposing the motion. In such circumstances summary judgment should be granted to the moving party unless the opposing party offers competent evidence admissible at trial showing that there is a genuine issue of material fact. Community Medical Services, Inc. v. Local 2665, 292 Pa. Super. 238, 437 A.2d 23 (1981).

When we are called upon to review an order granting summary judgment, our function is to determine whether there exists a genuine issue of material fact. Bobb v. Kraybill, 354 Pa. Super. 361, 511 A.2d 1379 (1986). We agree with the court below that the record demonstrates that there is no genuine issue of material fact, and that appellees are entitled to summary judgment as a matter of law.

[ 374 Pa. Super. Page 23]

The criminal proceedings in the federal judicial system were extensive and complex and a recitation of what occurred there is necessary to an understanding of the case. The appellant, Joseph Alberici, was indicted in federal court in August, 1982, on six counts of mail fraud in connection with an alleged scheme to collect fire insurance proceeds as a result of an arson occurring on August 6, 1977. The arson centered around the Jerry Lewis Theater in Ashton, Pennsylvania which Alberici, by agreement of sale dated May 9, 1977, had agreed to purchase.

On November 16, 1982, prior to trial, a hearing was held before Federal District Court Judge Louis H. Pollak at which it was disclosed to Mr. Alberici that his trial counsel, Nino Tinari, Esquire, received a grant of immunity to testify as a witness before the Grand Jury in an unrelated criminal investigation. Alberici continued to have Mr. Tinari represent him in the criminal proceedings. Timothy Gorbey, Esq., entered his appearance as co-counsel for Mr. Alberici in November, 1982.

Trial was held in January, 1983 before Pollak, J. and a jury and the defendant was convicted of all six counts of the indictment. Shortly thereafter, Messrs. Tinari and Gorbey filed on his behalf timely motions for a new trial and judgment of acquittal under Rule 33 of the Federal Rules of Criminal Procedure. Motions were denied by the court in February, 1983. Thereafter, Mr. Alberici discharged Messrs. Tinari and Gorbey as his counsel and retained new counsel, Richard Sprague, Esq., who filed "Supplemental Motion for Judgment of Acquittal or, in the Alternative, for New Trial." This motion raised the issue of ineffectiveness of counsel on three specific grounds: (1) failure to investigate properly; (2) failure to obtain the attendance of or to call certain witnesses at trial; and (3) failure to represent the defendant at trial in a competent fashion.*fn1 On July 25,

[ 374 Pa. Super. Page 241983]

the District Court granted the motion for new trial on grounds separate from the issue of the ineffective assistance of counsel. Although the court referred to the issue, it specifically indicated that it was not determining the issue of ineffectiveness of counsel. As a result of the grant of the motion, Alberici's convictions on all six counts of the indictment were vacated. Subsequently, however, the District Court reinstated the conviction with respect to Count 5 and he was sentenced to imprisonment for 20 months.

Mr. Alberici appealed to the United States Court of Appeals, Third Circuit, from the judgment of sentence. He was represented by new counsel, Jeffrey Miller, Esq., who replaced Richard Sprague, Esq. Mr. Alberici now claimed ineffective assistance of trial counsel as a result of (1) failure to request an accomplice instruction and (2) failure to investigate the defense that another individual had a motive to burn down the theater. The Court of Appeals affirmed the judgment of sentence and ruled that counsel was not ineffective. Mr. Alberici, who was still represented by Mr. Miller, filed a petition for a writ of ...

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