Opinion
J-S29004-17 No. 2658 EDA 2016
05-23-2017
301 MARKET STREET, LLC., GENERAL PARTNER FOR AND ON BEHALF OF 301 MARKET STREET PARTNERS, LP Appellant v. JONATHAN WHEELER, ESQUIRE AND LAW OFFICES OF JONATHAN WHEELER, P.C. Appellee
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment Entered July 19, 2016
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 01818 December Term, 2013 BEFORE: LAZARUS, J., SOLANO, J., and STEVENS, P.J.E. MEMORANDUM BY LAZARUS, J.:
Former Justice specially assigned to the Superior Court.
301 Market Street, LLC., general partner for and on behalf of 301 Market Street Partners, LP, ("Plaintiff"), appeals from the judgment, entered in favor of Appellee, Jonathan Wheeler, Esquire, and the Law Offices of Jonathan Wheeler, P.C., ("Wheeler"), in this legal malpractice action. We affirm.
The underlying legal malpractice lawsuit arises out of Wheeler's representation of Plaintiff in a property damage suit filed against a pizza shop adjacent to Plaintiff's property. Plaintiff discovered cracking and other structural damage to its property, 301 Market Street. On February 6, 2014, Plaintiff's attorney, Jeffrey Wolfson, Esquire, (Wolfson) filed a complaint in professional negligence against Attorney Wheeler averring that after an inspection of Plaintiff's 301 Market Street Property, it was "revealed [that] a number of structural defects, mainly cracks on the masonry walls [were] cause[d] in large measure [by] the vibrations caused by the use of large mixing machines by an adjacent Pizzeria Restaurant." Plaintiff's First Amended Complaint, 2/6/14, at ¶ 6. Because Attorney Wheeler did not file a writ of summons to commence Plaintiff's property damage action until August 16, 2013, more than two years after the date of the property inspection, Plaintiffs alleged that "as a direct and proximate result of [Attorney Wheeler's] failure to file the [c]ivil [a]ction on a timely basis . . . Plaintiff has been caused to suffer damages." Id. at ¶ 15.
In the underlying property damage case, Plaintiff retained the services of Walter Green, a forensic architect, who inspected the subject area of the cracks and the building; Green prepared a preliminary report on August 9, 2011. In his report, Green opined that:
The cracks observed in the common masonry wall with the pizzeria on 3rd Street were not consistent with building settlement or general latent displacement of the exterior wall. The damage observed was consistent with several causes. Given the evidence of water infiltration, the crack was consistent with water infiltrating the wall, experiencing a freeze/thaw cycle in the unheated space, which would cause the brick to crack. An alternative consistent source of the damage observed was the failure of a wood lintel supporting the masonry wall between the second and third floor. Further removal and demolition of wall finishes would be necessary to expose the cracks and supporting
structure to make a more positive determination. The use of large mixing machines in the pizzeria to the north on 3rd Street was consistent with contributing to the damage due to vibration in floors and walls. Measurements of vibration during machinery operation would be required to verify this observation. The cracks observed in the exterior wall observed on 3rd Street were consistent with a localized failure of a window lintel and did not appear to be the result of building settlement.Walter E. Green Preliminary Building Inspection Report, 10/12/11, at 2 (emphasis added).
Although Green's report is dated October 12, 2011, his actual inspection of Plaintiff's property was conducted on August 9, 2011.
On November 30, 2015 and December 1, 2015, the Honorable Eugene Maier held a bifurcated, non-jury trial in the malpractice action. Following trial, Judge Maier entered findings of fact and conclusions of law to support a verdict in favor of Attorney Wheeler. Specifically, Judge Maier found, in part, the following facts:
• Plaintiff asserts that the statute of limitations required a claim to be filed by August 9, 2013, which was two years from the [date of loss (DOL)], which was August 9, 2011. [Wheeler] argues the DOL was August 19, 2011, or thereafter, and that the earliest date of required filing was August 19, 2011[;]
• [T]he [c]ourt bifurcated the case and took testimony on that issue only, indicating testimony on other issues would be taken if the claim was not filed within the time required by the statute of limitation[s;]
• The parties also agreed that the statute of limitations for this cause would be two years from the DOL and that a Writ of Summons was filed on August 16, 2011[;]
• The credible evidence presented indicated that Mr. Wolfson a majority or sole owner of Plaintiff did not object to [Wheeler's] communication with Wolfson indicating [the] DOL [was] August 19, 2011. Also, [Wheeler's] credible evidence indicated that in conversations with Wolfson, Wolfson had told [Wheeler] that the DOL was August 19, 2011. In addition, [Wheeler's] expert opined that the DOL was August 19, 2011[;]Trial Court Findings of Fact/Conclusions of Law, 12/16/15, at 1-2.
• Wolfson's testimony and that of his expert that the DOL of August 19, 2011[,] pertained to a potential claim against [Plaintiff's] . . . Insurance Company has no basis in fact and is without merit[; and]
• The [c]ourt finds that there can only be one [DOL] herein, and that DOL was August 19, 2011[,] and that the Writ of Summon was filed timely[.]
See 42 Pa.C.S. § 5524.
Plaintiff filed post-trial motions that were denied by the trial court on July 19, 2016; judgment was entered simultaneously on the verdict. Plaintiff then filed a timely notice of appeal and court-ordered Pa.R.A.P. 1925(b) concise statement of matters complained of on appeal. On appeal, Plaintiff raises the following issues for our consideration:
(1) Whether the Court committed an error of law/abuse of discretion when it ruled the statute of limitations began to toll in the underlying matter on August 19, 2011 without the support of any competent evidence or testimony.
(2) The subsequent, Post Trial Court abused its discretion wherein it speculated on the original Trial Judge's intent, rational or reasoning regarding the issue of [Wheeler's] right to rely on information relative to the date upon which the statute of limitations began to toll.
(3) In the alternative, the Trial Court committed an error of law/abuse of discretion and [Plaintiff] was unduly prejudiced, by barring [Plaintiff] from fully litigating, developing and defending against the argument or defense that [Wheeler] had a right to rely on information provided
to them regarding the date upon which the statute of limitations began to toll.
In Sokolsky v. Eidelman , 93 A.3d 858 (Pa. Super. 2014), our Court set forth a plaintiff's standard of proof in a legal malpractice action, as follows:
[A] legal malpractice action in Pennsylvania requires the plaintiff to prove that he had a viable cause of action against the party he wished to sue in the underlying case and that the attorney he hired was negligent in prosecuting or defending that underlying case (often referred to as proving a "case within a case").Id. at 862 (citation omitted). Moreover, to establish a legal malpractice claim, the plaintiff must satisfy the following three-prong test.
1) [E]mployment of the attorney or other basis for a duty;Kituskie v. Corbman , 714 A.3d 1027, 1029 (Pa. 1998) (citation omitted) (emphasis added).
2) the failure of the attorney to exercise ordinary skill and knowledge; and
3) that such negligence was the proximate cause of damage to the plaintiff.
With regard to the underlying lawsuit filed against the pizza shop, we recognize that "[a] question regarding the application of the statute of limitations is a question of law." K.A.R. v. T.G.L., 107 A.3d 770, 775 (Pa. Super. 2014) (citation and internal quotation marks omitted). Our standard of review over questions of law is de novo and, to the extent necessary, the scope of our review is plenary as the appellate court may review the entire record in making its decision. Id. (citation omitted).
Generally, once the prescribed statutory period has expired on a cause of action, the complaining party is barred from bringing suit. Hayward v. Medical Center of Beaver County , 608 A.2d 1040, 1043 (Pa. 1990). The "discovery rule," however, is an exception to that rule, and its application tolls the running of the statute of limitations. Id. With regard to the discovery rule, we recognize that it is a judicially created device that tolls the running of the applicable statute of limitations until that point when the plaintiff knows or reasonably should know: (1) that he has been injured; and (2) that his injury has been caused by another party's conduct. Kituskie , 714 A.3d at 779-80.
Instantly, the statute of limitations on Plaintiff's cause of action against the pizza shop accrued when Plaintiff knew or reasonably should have known that 301 Market Street had suffered damages and that the damage had been caused by the pizza shop's conduct. Id. Attorney Wheeler contends that the Plaintiff led him to believe that the DOL on the underlying action against the pizza shop occurred on August 19, 2011, when Plaintiff sent a letter to its insurer informing the company that there was a crack in the wall of 301 Market and that Plaintiff intended to make a claim under its policy. Plaintiff, however, averred that the DOL was the date that Green conducted his inspection of the building on Plaintiff's behalf, on August 9, 2011. At trial, both parties offered expert testimony to support their claimed DOL.
It is evident that the trial judge, as factfinder, chose to believe the defense expert, Allen Gordon, Esquire, who opined, after reviewing relevant documents, that Attorney Wheeler was not negligent in reasonably relying upon information from Wolfson that the statute of limitations began to run on August 16, 2011, where: Wolfson never corrected information in letters he received from Wheeler indicating that the DOL was August 19th; the August 9th Green Report was considered "preliminary;" and it was reasonable for Wheeler to not consider August 9th as the DOL where the Green Report indicated further tests would have to be conducted to determine that the pizza shop was the cause of Plaintiff's damage. See N.T. Trial (Waiver), 12/1/15, at 33-35.
Those documents included: Plaintiff's complaint; Attorney Wheeler's response to complaint; Plaintiff's engineer's Limited Structural Assessment Report; Green's Report; Plaintiff's expert report; correspondence between Wolfson and Wheeler, including text and email messages; and 301 Market Street property photos. See Allan H. Gordon Expert Opinion, 7/2/15, at 1.
After reviewing the parties' briefs, relevant case law and record on appeal, we agree with the trial court that judgment was properly entered in this case where Wheeler did not breach his duty of care when he reasonably believed that the DOL in Plaintiff's underlying action against the pizza shop occurred on August 19, 2011. Because Attorney Wheeler filed the Writ of Summons on Plaintiff's property damage claim within the two-year statute of limitations, Attorney Wheeler did not "fail[] . . . to exercise ordinary skill and knowledge," Kituskie , supra , a prerequisite to proving a legal malpractice claim. We, therefore, rely upon The Honorable Idee C. Fox's July 19, 2016 post-trial opinion and October 12, 2016 addendum to opinion, and Judge Maier's December 16, 2015 findings of fact and conclusions of law in disposing of Plaintiff's issues on appeal. We instruct the parties to attach a copy of Judge Fox's and Judge Maier's decisions and findings/conclusions in the event of further proceedings in the matter.
Judge Maier retired as of December 31, 2015. --------
Judgment affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 5/23/2017
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