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February 2, 2004.


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. Page 2 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 reviewing the Page 3 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 follows:
[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 Page 4 (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. Page 5

  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 relationship).

  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. Page 6 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. Pa. ...

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