The opinion of the court was delivered by: Conti, District Judge.
In this memorandum opinion, the court considers the motion (Docket No. 18) filed by defendant Sanford A. Middleman ("Middleman") seeking to dismiss the only claim asserted against him by plaintiff Drew Whtiley ("plaintiff") pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) or in the alternative seeking that summary judgment be granted in his favor pursuant to Federal Rule of Civil of Procedure 56. Among other reasons asserted by Middleman for the court to grant him the relief that he is seeking are that this court lacks subject-matter jurisdiction over plaintiff's claim against him and that the claim against him is time-barred by the applicable statute of limitations. Plaintiff disputes those assertions. The court determines, although it is a somewhat close question, that it may exercise supplemental jurisdiction over plaintiff's claim against Middleman and will deny the motion to dismiss raised under Federal Rule of Civil Procedure 12(b)(1). The court notified that parties that it would consider matters outside of the complaint in resolving the issue whether plaintiff's claim against Middleman is time-barred and the motion to dismiss raised under Federal Rule of Civil Procedure 12(b)(6) will be denied as moot. See Fed.R.Civ.P. 12(b). After the court notified the parties that it would resolve the issue whether plaintiff's claim against Middleman is time-barred, the parties fully briefed this issue. Because based upon the undisputed evidence of record plaintiff's claim against Middleman is time-barred, summary judgment will be granted in favor of Middleman.
Factual and Procedural Background
On March 26, 2007, plaintiff commenced this lawsuit against Allegheny County, Thomas M. Fitzgerald, individually and as a detective for Allegheny County; Robert Lazarro, individually and as a detective for Allegheny County; Herb Foote, individually and as a detective for Allegheny County; Lee Torbin, individually and as a detective for Allegheny County; John Markle, individually and as a detective for Allegheny County; Robert Payne, individually and as a detective for Allegheny County (the "Allegheny County defendants") and against Middleman. Plaintiff asserted federal and state law claims against the Allegheny County defendants including claims arising under 42 U.S.C. § 1983 for deprivation of a fair trial and liberty without due process. Plaintiff asserted a state law claim for professional negligence against Middleman. Plaintiff's claims arise from plaintiff's alleged unlawful conviction and incarceration for the August 17, 1988 murder of Noreen Mallow. On May 1, 2006, plaintiff was exonerated of the murder by the Allegheny County Court of Common Pleas.
Plaintiff's claims against Middleman are contained in count III of the complaint. Plaintiff alleges that although Middleman was not plaintiff's attorney during plaintiff's criminal trial, Middleman represented plaintiff in the first of two petitions plaintiff filed for post-conviction relief (the "first PCRA petition"). (Compl. ¶15; Def.'s Mot. 2.) The first PCRA petition was filed by plaintiff pro se on February 23, 1993. (Def.'s Concise Statement ¶4, Ex. "A"; Pl.'s Responsive Concise Statement ¶4, Ex. "4".) In June 1995, Middleman was appointed by the court to represent plaintiff in connection with the first PCRA petition. On November 20, 1998, plaintiff's first PCRA petition was dismissed. (Def.'s Concise Statement ¶12, Ex. "K"; Pl.'s Responsive Concise Statement ¶12.)
On December 18, 1998, plaintiff wrote to the state trial judge referring to the dismissal of his PCRA petition on November 20, 1998. He noted that he did not receive the order dismissing his first PCRA petition until December 17, 1998. He stated:
As you know I no [sic] nothing about the law, and I have no money for a [sic] attorney. You no [sic] I am fighting for my life, and I will be truly grateful if you appoint me a [sic] attorney so I don't lose my appeal rights to the Superior Court. . . . I need your help, so would you please appoint me and [sic] attorney. (Def.'s Ex. "L".) On December 21, 1999, the state court judge reinstated plaintiff's right to appeal the denial of his first PCRA petition nunc pro tunc and appointed Robert Crisanti ("Attorney Crisanti") to represent him in connection with the appeal. (Def.'s Concise Statement ¶14, Ex. "M"; Pl.'s Responsive Concise Statement ¶14, Ex. "6".) On July 16, 2001, the Superior Court of Pennsylvania affirmed the dismissal of the first PCRA petition and on December 31, 2001, the Pennsylvania Supreme Court denied a petition for allowance of appeal. (Def.'s Concise Statement ¶15, Ex. "N"; Pl.'s Responsive Concise Statement ¶15.)
On October 29, 2002, plaintiff filed a second pro se PCRA petition, and on October 20, 2004, because plaintiff was unable to obtain a lawyer, the court appointed Scott Coffey ("Attorney Coffey") to represent plaintiff in connection with that second PCRA petition*fn1 . (Def.'s Concise Statement ¶¶16 and 18, Exs. "O" and "Q"; Pl.'s Responsive Concise Statement ¶¶16 and 18.) During the proceedings relating to plaintiff's second PCRA petition, only Attorney Coffey was listed as the "counsel of record." (Def.'s Ex. "N".) On July 7, 2005, plaintiff executed an acknowledgment for a motion for DNA testing. The motion was submitted on plaintiff's behalf by Attorney Coffey. In that motion Attorney Coffey described that after the first PCRA petition was dismissed by the state trial judge, new counsel was appointed. (Def.'s Ex. V at 5.)
In the complaint, plaintiff alleges that during Middleman's representation of plaintiff with respect to the first PCRA petition, Middleman recklessly and wantonly disregarded his duty to plaintiff by failing to communicate with plaintiff. Plaintiff asserts that Middleman failed to investigate properly the location of existing, yet lost, DNA evidence, which plaintiff claims that Thomas M. Fitzgerald, Robert Lazarro, Herb Foote, Lee Torbin, John Markle, and Robert Payne who were Allegheny County Detectives, maliciously concealed. Plaintiff argues that Middleman's actions, and inaction, proximately caused plaintiff to suffer prolonged incarceration. Plaintiff alleges that Middleman negligently stipulated to an inferior form of DNA testing, and, but for that breach of Middleman's professional responsibility, plaintiff would have been subjected to a shorter term of imprisonment.
On June 28, 2007, Middleman filed the instant motion which is opposed by plaintiff. Among the issues raised by defendant are that this court lacks subject-matter jurisdiction over the state law claim asserted against him and that the claim asserted by plaintiff against Middleman is time-barred under the applicable statute of limitations. Each of these issues will be addressed.
A Rule 12(b)(1) motion to dismiss for lack of subject-matter jurisdiction raises the issue whether the court has the power to hear the matter before it. Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). The burden of establishing jurisdiction lies with the party seeking to invoke the court's jurisdiction. Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991); Mortensen, 549 F.2d at 891.
A Rule 12 (b)(1) motion to dismiss for lack of subject-matter jurisdiction may facially or factually challenge the court's jurisdiction. Mortensen, 549 F.2d at 891; Gould Electronics, Inc. v. U.S., 220 F.3d 169, 176 (3d Cir. 2000)(citing Mortensen, 549 F.2d at 891). In reviewing a facial attack, a court considers the allegations of the complaint and documents referenced therein and attached thereto in the light most favorable to the plaintiff. See Gould, 220 F.3d at 176; PBGC v. White, 998 F.2d 1192, 1196 (3d Cir. 1993).*fn2 In reviewing a factual attack, the court may consider evidence outside the pleadings, including affidavits. See Gotha v. U.S., 115 F.3d 176, 178-79 (3d Cir. 1997).*fn3 When a court's power to hear a case is at issue, a court is free to weigh the evidence regarding jurisdiction. Mortensen, 549 F.2d at 891-92.
Federal Rule of Civil Procedure 56(c) provides that summary judgment may be granted if, drawing all inferences in favor of the nonmoving party, "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). A motion for summary judgment will not be defeated by the mere existence of some disputed facts, but will be defeated when there is a genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). In determining whether the dispute is genuine, the court's function is not to weigh the evidence or to determine the truth of the matter, but only to determine whether the evidence of record is such that a reasonable jury could return a verdict for the nonmoving party. Id. at 249. The court is to draw all reasonable inferences in favor of the nonmoving party. El v. Southeastern Pa. Transp. Auth., 479 F.3d 232 (3d Cir.2007)("In considering the evidence, the court should draw all reasonable inferences against the moving party."). The United States Court of Appeals for the Third Circuit recently stated:
[I]f there is a chance that a reasonable factfinder would not accept a moving party's necessary propositions of fact, pre-trial judgment cannot be granted. Specious objections will not, of course, defeat a motion for summary judgment, but real questions about credibility, gaps in ...