The opinion of the court was delivered by: Sylvia H. Rambo United States District Judge
Before the court is Defendant Philip A. Downey's motion for summary judgment. (Doc. 15.) The motion has been fully briefed and is ripe for disposition. For the reasons that follow, the motion will be granted.
This case arises out of a divorce dispute between Plaintiff Nicholas Knopick and his former wife, Dolly Knopick. Prior to actually filing for divorce, on May 11, 1998, Plaintiff and Dolly entered into a Property Settlement Agreement ("PSA"). (Doc. 23, Def.'s Statement of Material Facts ("SMF") ¶ 3.) The validity of the PSA was later challenged by Dolly who claimed that Plaintiff had failed to make a full and fair disclosure of his financial assets. (Id. ¶¶ 4, 5.) A hearing to determine the validity of the PSA was held on August 2, 2004, before the Honorable Kathy Morrow of the Perry County Court of Common Pleas. (Id. ¶ 4.) On July 5, 2005, Judge Morrow issued an order declaring the PSA invalid due to fraud on the part of Plaintiff. (Id. ¶ 8.) Plaintiff was represented at this time by co-Defendants John J. Connelly, Susan M. Kadel and the law firm of James, Smith, Durkin and Connelly, LLP (collectively "the firm").*fn2 Plaintiff was unsatisfied with the representation provided by the firm and retained Downey in March of 2007 to look into possible instances of legal malpractice.*fn3 (Id. ¶ 2.) Specifically, Plaintiff contends that the firm failed to call relevant witnesses at the hearing, and if these witnesses had been called Judge Morrow would not have invalidated the PSA. In February of 2008, Defendant Downey informed Plaintiff that he would not pursue a legal malpractice claim against the firm because the statute of limitation on these claims was two-years and that it had begun to run in August of 2004 when the firm failed to call potentially relevant witnesses at the hearing. (Compl. ¶ 52.)
On July 6, 2009, Plaintiff filed suit against the firm alleging legal malpractice under a breach of contract theory of liability. In this same complaint, Plaintiff brought suit against Downey alleging legal malpractice under both tort and contract theories of liability. (Doc. 1.) On December 29, 2009, this court dismissed Defendants Connelly, Kadel and the firm, finding that the statute had run with regard to Plaintiff's claims against them. (Doc. 29.) On October 21, 2009, Downey filed a motion for summary judgment and brief in support. (Docs. 15, 17.) Plaintiff filed a response brief on November 3, 2009, to which Downey replied on November 9, 2009. (Docs. 19, 20.) Although untimely, on November 29, 2009, Downey filed a statement of material facts, and on December 14, 2009, Plaintiff filed his counter-statement of material facts. (Docs. 23, 28.) The motion is now ripe for disposition.
Summary judgment is proper when "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); accord Saldana v. Kmart Corp., 260 F.3d 228, 231-32 (3d Cir. 2001). A factual dispute is "material" if it might affect the outcome of the suit under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is "genuine" only if there is a sufficient evidentiary basis that would allow a reasonable fact-finder to return a verdict for the nonmoving party. Id. at 248. The court must resolve all doubts as to the existence of a genuine issue of material fact in favor of the non-moving party. Saldana, 260 F.3d at 232; see also Reeder v. Sybron Transition Corp., 142 F.R.D. 607, 609 (M.D. Pa. 1992).
The moving party bears the initial burden of demonstrating the absence of a disputed issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). Upon such a showing, the burden then shifts to the non-moving party to present "specific facts showing the existence of a genuine issue for trial." Fed. R. Civ. P. 56(e). The nonmoving party may not simply sit back and rest on the allegations in its complaint; instead, it must "go beyond the pleadings and by [its] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Celotex Corp., 477 U.S. at 324 (internal quotations omitted); see also Saldana, 260 F.3d at 232 (citations omitted). Summary judgment should be granted where a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden at trial." Celotex, 477 U.S. at 322-23. "'Such affirmative evidence -- regardless of whether it is direct or circumstantial -- must amount to more than a scintilla, but may amount to less (in the evaluation of the court) than a preponderance.'" Saldana, 260 F.3d at 232 (quoting Williams v. Borough of West Chester, 891 F.2d 458, 460-61 (3d Cir. 1989)).
The parties in this case make numerous arguments, many of which may be meritorious, but for the reasons mentioned below, are simply irrelevant. First, Downey argues that Plaintiff cannot establish any damages due to Downey's conduct and cannot prove causation with regard to his tort claim. Second, Downey argues that he could not have brought legal malpractice claims against Plaintiff's former attorneys because Plaintiff engaged in fraud by failing to fully and fairly disclose his financial assets to Dolly prior to entering into the PSA. Only in passing does Downey contend that he could not have brought a legal malpractice claim against Plaintiff's former attorneys because the statute of limitations on these claims had run, although this was the reason he originally gave for failing to bring the claims.
Plaintiff argues that the statute of limitations had not run on his claims when he retained Downey in March of 2007, and that Downey, thus, committed legal malpractice by failing to file suit. Because the court finds that the statute of limitations had run ...