the matter. See Schwartz v. Steven Kramer & Associates, No. 90-CV-4943,
1995 WL 3673 (E.D.Pa. January 4, 1995). Therefore, it is clear that the
court should apply the law of Pennsylvania to the plaintiffs' claim of
Statute of Limitations
Under Pennsylvania law, there is a two year statute of limitations
governing legal malpractice actions based in tort.*fn4 See 42 P.S.
§ 5524, Saferstein v. Paul, Mardinly, Durham, James, Flandreau &
Rodger, P.C., No. 96-CV-4488, 1997 WL 102521 (E.D.Pa. February 28,
1997). Pennsylvania uses the "occurrence rule" to determine when the
claim accrues, thereby triggering the statute of limitations. Id. at *3.
This means that an action for malpractice accrues at the point an
attorney breaches his or her professional duties. See Harsco Corp. v.
Kerkam, Stowell, Kondracki & Clarke, 961 F. Supp. 104 (M.D.Pa. 1997).
In order to bring a claim outside of the statute of limitations, a
plaintiff faces the burden of demonstrating that their claim falls into
one of the exceptions to the occurrence rule. One of these exceptions is
the "equitable discovery rule" which tolls the statute of limitations
where the plaintiff cannot, "despite the exercise of due diligence" know
of his injury or its cause. Saferstein, 1997 WL 102521 at *3. The claim
accrues at the point where the plaintiff knows he's been injured and that
the injury has been caused by another's conduct. See Urland v.
Merrell-Dow Pharm., Inc., 822 F.2d 1268,1271 (3d Cir. 1987). However,
lack of knowledge, a mistake, or a misunderstanding will not toll the
statute, rather the plaintiff must show that the plaintiff could not
have, despite its diligence, have known of the claim. See Pocono Int'l
Raceway, Inc. v. Pocono Produce, Inc., 468 A.2d 468 (Pa. 1983).
The plaintiffs bear the burden of demonstrating their "inability to
know of the injury despite the exercise of reasonable diligence."
Sterling v. Stack & Gallagher, P.C., No. 97-CV-0297, 1998 WL 84006
(E.D.Pa. February 26, 1998). The Third Circuit has defined reasonable
diligence in noting, "[t]here are very few facts which diligence cannot
discover, but there must be some reason to awaken inquiry and direct
diligence in the channel in which it would be successful." Urland, 822
F.2d at 1273. Where the plaintiff has no reason to investigate, the
statute will be tolled. See Sterling, 1998 WL 84006 at *4. However, if
there is something to trigger the inquiry, then the plaintiff must
demonstrate that he conducted an investigation, and despite doing so, did
not discover his injury.
The instant case presents two separate issues of material fact which
preclude the entry of summary judgment based on statute of limitations
grounds. First, there is a genuine issue of material fact as to whether
the plaintiffs exercised the appropriate and legally required diligence.
Second, assuming that the plaintiffs did exercise the required
diligence, tolling his claim for a period of time, there is a genuine
issue of material fact concerning the date he actually learned of his
claim. "Whether the statute has run on a claim is usually a question of
law for the trial judge, but where the issue involves a factual
determination, the determination is for the jury." Hayward v. Med. Ctr.
of Beaver County, 608 A.2d 1040,
1043 (Pa. 1992); see also Caleb v.
CRST, Inc., No. 01-CV-351, 2001 WL 438420, *4 (E.D.Pa. April 30, 2001);
Levocz v. Fanelly, No. 92-CV-3551, 1993 WL 175236, *2 (E.D.Pa. May 14,
The parties do not dispute that the relevant breach of duty occurred on
May 11, 1998, when Dugan withdrew the praecipe, allegedly without first
obtaining Foulke's consent.*fn5 The defendants argue that the statute of
limitations on Foulke's malpractice claim against Dugan began to run on
that date. Because there was nothing actually barring the plaintiffs from
discovering their claims, and their own "lack of knowledge" provides no
excuse for the failure to understand the implications of Dugan's
actions, the discovery rule does not apply. Plaintiffs, however, contend
that they are entitled to the tolling of the statute under the discovery
rule because nothing triggered their obligation to investigate.
In January 1998, Attorney Berman had written to Foulke, advising him he
would not pursue the case and that he needed to act quickly in order to
preserve the action. Subsequently, Foulke met with Dugan who filed a
praecipe and writ within the statutory period in the underlying action
thereby barring any contention of violation of the statute. When Foulke
received a letter from Dugan in March, Foulke could have reasonably
concluded that this letter meant only that Dugan would no longer
represent him in the preserved action. The Berman letter had been so
explicit about the meaning of his withdrawal, that Foulke might
reasonably have concluded that the letter from Dugan meant no more than
what it said on its face — that Dugan's firm was closing their file
on the case. Because Dugan had filed the appropriate papers to prevent
the expiration of the statute of limitations, without further
instruction, Foulke could have reasonably believed he was under no
deadline to seek alternate legal counsel to pursue, what he still
believed to be, his pending action.
"[O]nly where the facts are so clear that reasonable
minds cannot differ may the commencement of the
limitations period be determined as a matter of law.
Hayward, 608 A.2d at 1043. Here, based on the evidence
presented in the record, it is possible that
reasonable minds could differ as to whether Foulke had
the necessary clues that set off his obligation to
investigate the implications of Dugan's withdrawal.
Because material issues of fact remain outstanding
concerning the Foulkes' knowledge of their position
and whether it would have been reasonable for them to
inquire about the alleged breach, summary judgment
cannot be granted on these grounds. See Sterling v.
Stack & Gallagher, P.C., No. 97-CV-0297, 1998 WL
84006, *4 (E.D.Pa. February 26, 1998).
Defendants also argue for summary judgment based upon their assertion
that the plaintiffs received the requisite notice to trigger the
commencement of the running of the statute on the malpractice action no
later than August 31, 1998. The
instant action was not filed until
September 1, 2000, one day beyond the two year period. Dugan's contention
that the statute began to run on August 31, 1998 is based upon a
telephone conversation between Attorney Dooley and Foulke. On that day,
Dooley contacted Foulke to inform him that he could not pursue any action
against the Budd Company and that he "had a problem." Dep. of George
Foulke, 54. In a letter dated September 1, 1998, Dooley confirmed the
phone conversation of the previous day and indicated that the case had
"already been settled, discontinued, and ended as of May 11, 1998," and
enclosed a copy of the order entered in the state court action. Letter of
September 1, 1998 from Attorney John T. Dooley to George Foulke. As soon
as the plaintiffs had notice that the case had been settled,
discontinued, and ended, they had the requisite notice to end any tolling
and commence the running of the limitations period. Plaintiffs disagree
with this characterization and argue that the limitations period did not
start to run until later in September 1998, when Foulke discussed the
matter with Attorney Dooley at his office.
It is not clear from the record that the plaintiffs received notice of
the specific disposition during the phone conversation on August 31.
Foulke recalled being told only that he "had a problem," and not that the
case had been settled. Dep. of George Foulke, 54. While Attorney Dooley
indicated that the letter was, to the best of his knowledge, accurate, he
had no independent recollection of the phone conversation with Foulke.
See Defs.' Resp. to Pls.' Opp'n, 7.*fn6 Considering these facts in the
light most favorable to the plaintiffs, it cannot be determined as a
matter of law that the limitations period was triggered by the phone call
of August 31, 1998. Based on the evidence before me, it could reasonably
be determined that Foulke's receipt of the September 1, 1998 letter
triggered the statute of limitations. Since his receipt of the letter
dated September 1, 1998 could not have been received prior to that date,
the plaintiffs' claims would not be barred by the statute of
limitations. There is a disputed issue of material fact concerning the
precise date the statute was triggered so therefore I will deny the motion
for summary judgment.
AND NOW, this day of February 2002, it is ORDERED that the defendants'
motion for summary judgment (docket entry # 9) is DENIED.