The opinion of the court was delivered by: BERLE M. SCHILLER, District Judge
Plaintiff Franklin Uzoma Igbonwa brings this action against Defendant
Angelo L. Cameron for legal malpractice arising from Defendant's
representation of Plaintiff in a state forfeiture proceeding. Pursuant to
Federal Rule of Civil Procedure 12(b)(6), Defendant moves to dismiss
Plaintiff's Complaint asserting that the action is barred by the
applicable statute of limitations. On November 26, 2003, this Court
construed Defendant's motion as a motion for summary judgment under
Federal Rule of Civil Procedure 56, noticed the parties, and directed
Plaintiff to respond. For the reasons that follow, this Court grants
Defendant's motion for summary judgment.
On May 24, 1990, Philadelphia police officers arrested Plaintiff in his
home for possession of a controlled substance and seized personal items,
including $54,335.00 in United States currency, a 1989 Honda Accord,
various items of jewelry, a video camera, and a pager. See United
States v. Igbonwa, No. 90-375, 1996 WL 515517, at *1, 1996 U.S.
Dist. LEXIS 13012, at *1 (E.D. Pa. Aug.
26, 1996) (invalidating original state forfeiture action). On June
11, 1991, the Court of Common Pleas of Philadelphia County ordered these
items forfeited to the Commonwealth of Pennsylvania. Id. On
August 26, 1996, the United States District Court for the Eastern
District of Pennsylvania granted Mr. Igbonwa's motion to invalidate the
state forfeiture orders as violative of the Due Process Clause.
Id. Thereafter, the State reinstituted forfeiture proceedings.
In August 1997, on the advice of his cousin, Ifedoo Noble Enigwe,
Plaintiff hired Defendant to represent him in the forfeiture proceedings.
At some point near the end of 1997, however, Plaintiff was deported to
Nigeria. (Pl.'s Resp. to Def.'s Mot. at 2.) Prior to Plaintiff's
departure, he gave Mr. Enigwe power of attorney "to act in his stead in
following up with the property situation." (Id.)
On June 30, 1999, the state court entered a judgment of forfeiture.
(Compl. ¶ 9.) According to Plaintiff's Complaint, Defendant committed
malpractice by failing to assert the "sure win" statute of limitations
defense to the state's forfeiture action. (Compl. ¶ 8.) Mr. Enigwe
claims that, after several months of trying to contact Defendant on
Plaintiff's behalf, he was first informed of the outcome of the
forfeiture proceedings and Defendant's alleged malpractice when he
received a letter from Defendant on October 6, 2000. (Pl's Resp. at 2.)
On September 29, 2003, Plaintiff filed his Complaint in this action.
Summary judgment is appropriate when the admissible evidence fails to
demonstrate a dispute of material fact and the moving party is entitled
to judgment as a matter of law. FED. R. CIV. P. 56(c) (1994);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). In
record to determine whether a genuine dispute of material fact
exists, "a court must view the facts in the light most favorable to the
nonmoving party and draw all inferences in that party's favor."
Armbruster v. Unisys Corp., 32 F.3d 768, 777 (3d Cir. 1994).
When a defendant raises the statute of limitations defense in a motion
for summary judgment, the court must determine whether there is a genuine
issue of material fact as to whether Plaintiff's action was commenced
within the statutory period. Holmes v. Lado, 602 A.2d 1389, 1392
(Pa. Super. 1992).
In order to determine whether Plaintiff's action is timely, the Court
must first ascertain the applicable statute of limitations. Under
Pennsylvania law, a plaintiff asserting a legal malpractice claim may
plead either in contract or tort, each of which is subject to a different
statute of limitations. Guy v. Liederbach, 459 A.2d 744, 748
(Pa. 1983); Garcia v. Cmty. Legal Servs. Corp., 524 A.2d 980,
982 (Pa. Super. 1987). The distinction between legal malpractice
claims arising in contract and those arising in tort can be summarized as
[T]o sustain a claim of tortious malpractice,
plaintiff must raise an issue whether the
defendants failed to exercise the standard of care
that a reasonable attorney would exercise under
the circumstances. To sustain a claim of legal
malpractice that arises from a breach of contract,
a plaintiff must show that there was a contract,
and that the defendant breached a
specific provision thereof.
Sherman Indus. Inc. v. Goldhammer, 683 F. Supp. 502, 506
(E.D. Pa. 1988) (internal citations and quotations omitted). An action in
assumpsit for breach of an oral contract is subject to a four-year
statute of limitations, 42 PA. CONS. STAT. § 5525 (West 2003), and an
action in trespass for professional negligence is subject to a two-year
statute of limitations, 42 PA. CONS. STAT. § 5524
(West 2003). See also Sherman Indus., 683 F. Supp. at
505-06. Although Plaintiff's pro se Complaint does not specify whether he
pleads in contract or tort, this Court will liberally construe the
Complaint to assert both causes of action. See id. (noting
plaintiff may combine tort and contract claims in one complaint);
Haines v. Kerner, 404 U.S. 519
, 520 (1972) (holding that courts
should liberally construe pro se pleadings). The outcome of this Court's
analysis is the same regardless of whether the two-year or four-year
statute of limitations applies.*fn1
In malpractice actions, Pennsylvania courts employ the "occurrence"
rule under which a cause of action accrues and the statute of limitations
begins to run at the time the attorney breaches her duty to the
plaintiff. Garcia, 524 A.2d at 984. As a general rule, a
plaintiff is under a duty to use all reasonable diligence to be properly
informed of the facts and circumstances upon which a potential right of
recovery is based and to institute suit within the prescribed statutory
period. Pocono Intern. Raceway, Inc. v. Pocono Produce, Inc.,
468 A.2d 468, 471 (Pa. 1983). Furthermore, it is well settled in
Pennsylvania that lack of knowledge, mistake or misunderstanding do not
toll the running of the statute of limitations. Id. ("[E]ven
though a person may not discover his injury until it is too late to
take advantage of the appropriate remedy, this is incident to a law
arbitrarily making legal remedies contingent on mere lapse of time.").
At the expiration of the prescribed statutory period, a party is
barred from bringing suit unless an exception to the general rule has
been established that tolls the running of the statute. Id.
A brief recitation of the events underlying the instant action reveals
that any and all of Plaintiff's claims are time-barred. According to the
Complaint, Plaintiff hired Defendant in August 1997 to represent him in
the state forfeiture proceedings. (Compl. ¶ 4.) On June 30, 1999, the
state court entered judgment of forfeiture. (Id. ¶ 9.) The
instant action, charging Defendant with malpractice for failing to assert
a statute of limitations defense to the forfeiture action, was not filed
until September 29, 2003, approximately four years and three months after
the state judgment was entered. Because the Plaintiff's cause of action
for malpractice accrued at the time of the attorney's alleged breach of
his duty to the Plaintiff, this action is time-barred.
Plaintiff advances two arguments in support of his contention that his
action is nonetheless timely. First, Plaintiff asserts that an action for
legal malpractice accrues at the termination of the attorney-client
relationship, which, Plaintiff claims, did not occur until the filing of
the instant Complaint on September 29, 2003. Plaintiff's argument is
unavailing, however, because Pennsylvania courts have not adopted the
continuous representation rule in civil malpractice cases. Glenbrook
Leasing Co. v. Beausang, No. 3713, 2003 WL 22939515, *5 (Pa. Super.
Ct. Dec. 15, 2003); Crown Cork & Seal Co., Inc. v. Montgomery,
McCracken, Walker & Rhoads, LLP, No. 03185, 2003 WL 23120185, *3
(Pa. Com. PL Dec. 29, 2003); cf. Bailey v. Tucker, 621 A.2d 108,
115-16 (Pa. 1993) (holding that malpractice action by criminal defendant
against former defense counsel accrues at termination of attorney-client
Alternatively, Plaintiff argues that, under the "discovery rule," the
statute of limitations did not begin to run until Plaintiff's cousin
received the October 6, 2000 letter informing him that the case had been
lost. Under the "discovery rule," the statute of limitations is tolled
until the plaintiff discovers or reasonably should have discovered the
existence of the cause of action. Hayward v.
Med. Ctr. of Beaver County, 608 A.2d 1040, 1043
(Pa. 1992); Pocono, 468 A.2d at 471 ("[T]he discovery rule arises
from the inability of the injured, despite the exercise of due diligence,
to know of the injury or its cause."); Moore v. McComsey,
459 A.2d 841 (Pa. Super. 1983) (applying discovery rule to legal
malpractice actions). This "narrow exception," Tohan v. Owens-Corning
Fiberglass Corp., 696 A.2d 1095, 1200 n.4 (Pa. 1997), is to be
applied in "only the most limited circumstances," Dalrymple v.
Brown, 701 A.2d 164, 171 (Pa. 1997). In order to qualify for the
discovery rule, the plaintiff must have made reasonable efforts to
protect his or her own interests and must demonstrate why he was unable
to discover the facts necessary to plead the cause of action.
Spillman v. Wallen, No. 95-750, 1996 WL 379553, *6 (E.D.