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FOULKE v. DUGAN

February 22, 2002

GEORGE H. FOULKE, KATHLEEN FOULKE PLAINTIFFS,
V.
GERALD J. DUGAN, ESQUIRE, DUGAN, BRINKMANN, MAGINNIS AND PACE, DEFENDANTS.



The opinion of the court was delivered by: Anita B. Brody, United States District Judge.

MEMORANDUM AND ORDER

This is a legal malpractice claim brought by plaintiff George Foulke ("Foulke") and his wife (collectively "plaintiffs") against Gerald Dugan ("Dugan") and his law firm (collectively "defendants"). Plaintiffs allege that the defendants were negligent in the handling of a personal injury action in that the defendants (1) failed to inquire about Foulke's marital status, resulting in barring of his wife's loss of consortium claim; (2) failed to properly interview Foulke about the underlying incident, resulting in the failure to pursue a negligence claim in addition to the intentional tort claim; (3) failed to actually conduct an asset check of the individual tortfeasor; (4) failed to withdraw as counsel and permitting plaintiff to pursue his claim pro se; and (5) withdrew the writ of praecipe and summons without consulting with the plaintiff. The case was originally filed in two separate, but identical state court actions, one in Pennsylvania and one in New Jersey. The defendants then removed to federal court on the basis of diversity, and one action was pending in the District of New Jersey and the other in the Eastern District of Pennsylvania. Plaintiffs subsequently filed a motion for remand to the state court in the Pennsylvania action which I denied in June 2001. After denial of that motion, the New Jersey case was transferred to this district and the two actions were consolidated on August 13, 2001. On August 29, 2001, defendants filed a motion for summary judgment, claiming that the plaintiffs' claims were barred by the applicable statute of limitations.

Factual Background*fn1

On February 20, 1996, plaintiff, George Foulke made a delivery, in the course of his employment, to the Budd Company in Philadelphia, Pennsylvania. While on the company's premises, Foulke was involved in an altercation with an employee of that company, Cornelius "Neil" Vinson, and as a result of that incident, Foulke suffered various injuries. At some point in 1997, Foulke consulted with attorney David S. Berman, of the firm of Haymond & Lundy, located in Philadelphia, and requested representation in a lawsuit against the Budd Company and Mr. Vinson. On January 8, 1998, Mr. Berman wrote to Foulke and informed him that his firm would not represent Foulke in his action because they did not believe he had a viable cause of action against either the company or Mr. Vinson. In that same letter, Berman also advised Foulke that if he still wished to pursue his claim, he needed to take action quickly as the statute of limitations on that action would expire on February 20, 1998.*fn2

Heeding his former attorney's advice, Foulke met with the defendant, Gerald Dugan of the firm Dugan, Brinkmann, Maginnis, and Pace, in his Philadelphia office on January 19, 1998. Three days later, on January 22, 1998, Dugan filed a Praecipe to Issue a Writ of Summons in the Court of Common Pleas of Philadelphia County, naming the Budd Company and Cornelius Vinson as defendants. Over the course of the next month, Dugan obtained certain information by subpoenaing the records of the Budd Company that indicated the company had no prior notice of Vinson's violent behavior and Dugan advised Foulke of the results of his preliminary investigation by letter dated February 24, 1998. After confirming this information, Dugan again wrote to Foulke on March 9, 1998, indicating he would be closing his file and inviting Foulke to contact him with any questions.*fn3 On May 11, 1998, Dugan filed an Order to Settle, Discontinue, and End Foulke's action against the Budd Company and Neil Vinson in the Court of Common Pleas.

Several months later, in August 1998, Foulke contacted a third attorney, John Dooley, regarding the same tort action and a worker's compensation claim. Plaintiff brought his case file to Mr. Dooley, who after reviewing that file contacted him by phone on August 31, 1998 to inform him that he would be unable to pursue his claim against the Budd Company. Dooley confirmed this phone call in a letter sent to Foulke and dated September 1, 1998. In that letter, Dooley advised Foulke that he could not pursue the action because it had already been settled, discontinued, and ended, pursuant to an order entered on May 11, 1998. Later that month, Foulke visited Dooley's office to pick up his case file and learned, at that time, the implications of the writ filed by Dugan to settle his case. The plaintiffs filed this malpractice action against Dugan and his firm on September 1, 2000.

Legal Standard

Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). A court must determine "whether the evidence presents a sufficient [factual] disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). At the summary judgment stage, the court has an obligation to consider the evidence and draw all reasonable inferences in favor of the party who has not made the motion. See Dici v. Com. of Pa., 91 F.3d 542, 547 (3d Cir. 1996). In addition to contesting the facts and conclusions presented by the moving party, when the nonmoving party "`bears the burden of persuasion at trial, the moving party may meet its burden on summary judgment by showing that the nonmoving party's evidence is insufficient to carry that burden.'" Foulk v. Donjon Marine Co., Inc., 144 F.3d 252, 258 n. 5 (3d Cir. 1998) (quoting Wetzel v. Tucker, 139 F.3d 380, 383 n. 2 (3d Cir. 1998)).

Defendants contend that summary judgment is appropriate in this case because there is no genuine issue of material fact to support a finding of liability against them because plaintiffs' claim is barred by Pennsylvania's two-year statute of limitations. Plaintiffs contest this on the grounds that the applicable statute of limitations is New Jersey's of six years, or in the alternative, that the two-year statute does not bar their claims.

Discussion

Choice of Law

In a diversity action, the district court must apply the choice of law rules of the forum state to determine what substantive law will govern the claim. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941). Because this court is located in the state of Pennsylvania, Pennsylvania choice of law rules will govern.

In Griffith v. United Air Lines, Inc., the Pennsylvania Supreme Court was confronted with a choice of law problem. The executor of an estate filed an action in Pennsylvania court for breach of contract and negligence claims arising from a plane crash in Colorado that killed the decedent on a flight en route from Philadelphia to Phoenix. After discussing traditional rules such as "place of the wrong," the court adopted a more flexible approach, enabling courts to analyze the underlying policies and interests in considering what law to apply. While the "place of the wrong" remains a significant part of the inquiry, the court should consider other factors in applying the "significant relationship" test articulated by the Restatement (Second) Conflict of Laws. See Griffith, 203 A.2d 796, 801-806 (Pa. 1964). Rephrased in a more concise manner, the Pennsylvania Supreme Court subsequently announced that "the jurisdiction having more interest in the problem, and which is more intimately concerned with the outcome is the forum whose law should apply." Allstate v. McFadden, 595 A.2d 1277, 1279 (Pa. 1991).

Under this test, Pennsylvania law applies to the matter at hand. The Restatement (Second) Conflict of Laws § 145 lists four specific factors that are relevant to the determining which jurisdiction has the most significant relationship to the case: (1) the place where the injury occurred; (2) the place where the conduct causing the injury occurred; (3) the domicile, residence, nationality, or place of business or incorporation of the parties; and (4) the place where the relationship between the parties is centered. See 1 Restatement (Second) Conflict of Laws § 145 at 414. Here the injury to the plaintiffs, being barred from pursuing their claim in Pennsylvania state court, occurred in Pennsylvania. Similarly, the conduct causing the injury also took place in Pennsylvania. The underlying workplace altercation, the meetings between all of the attorneys involved and plaintiffs, and the alleged misconduct all occurred in Pennsylvania. While the plaintiffs are New Jersey residents, Dugan is a resident of Pennsylvania, and his firm is incorporated and has its principal place of business in Pennsylvania as well. The relationship between the parties is also based in Pennsylvania. Foulke, a New Jersey resident voluntarily chose to seek legal advice from not one, but three separate lawyers, all located in Pennsylvania. It is also worth noting that while a state's interest in regulating members of its bar is not dispositive of a choice of law issue, when ...


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