Knopick v. Downey

NICHOLAS KNOPICK, Plaintiff v. PHILIP A. DOWNEY, Defendant¹

Civil No. 1:09-CV-1287

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

Dated: May 6, 2013

Judge Sylvia H. Rambo

MEMORANDUM

In this civil action invoking this court's diversity jurisdiction under 28 U.S.C. § 1332, Plaintiff has sued, inter alia, his former attorney, for legal malpractice related to Defendant's representation of Plaintiff in connection with a prior legal malpractice suit. Presently before the court are two motions, both of which were filed by Defendant. (Docs 49, and 59 & 82.²) The first motion, Defendant's second motion for summary judgment (Doc. 49), seeks judgment as a matter of law on the basis that "reasonable minds cannot differ" that Plaintiff's original attorneys, who represented Plaintiff in connection with an action related to a post-nuptial property settlement agreement, did not commit legal malpractice, and thus, there was no viable claim for legal malpractice based upon their representation of Plaintiff. (See Doc. 51, p. 7 of 30.) The second motion, Defendant's motion to strike (Docs. 59 & 82), seeks to exclude certain material facts and exhibits offered by Plaintiff in opposition to the motion for summary judgment. For the followingreasons, the court will grant in part and deny in part Defendant's motion to strike, and will deny Defendant's motion for summary judgment in its entirety.

I. Background

Plaintiff initiated this case by filing a complaint on July 6, 2009. The complaint named as defendants Philip A. Downey, Esquire ("Defendant"), as well as his previous attorneys, John J. Connelly, Jr., Esquire, Susan M. Kadel, Esquire, and James, Smith, Durkin & Connelly, L.L.P., (collectively "Connelly Defendants"). (Doc. 1.) The complaint alleged that Plaintiff had previously retained the Connelly Defendants to represent him in a state court action against his former wife, Darlene Knopick ("Darlene"), involving a post-nuptial property separation agreement ("PSA") between him and his wife (Id. at ¶ 21), and that he retained Defendant in connection with a legal malpractice claim arising therefrom (Id. at ¶ 46). Specifically, the complaint brought a breach of contract claim against the Connelly Defendants in connection with their state court representation of Plaintiff in the PSA proceedings, and a legal malpractice and breach of contract claim against Defendant in connection to his failure to adequately prosecute Plaintiff's legal malpractice claim against the Connelly Defendants. (See id.) On July 22, 2009, the Connelly Defendants filed a motion to dismiss (Doc. 4), and on December 29, 2009, the court granted the Connelly Defendants' motion on the basis that the applicable two-year statute of limitations³ had expired prior to the July 22, 2009 filing date. (Doc. 29.) Plaintiff did not file a timely appeal of that ruling.

On October 21, 2009, Defendant filed a motion for summary judgment. (Doc. 15.) Defendant argued that Plaintiff's claims must fail because he and the Connelly Defendants⁴ did not cause Plaintiff to suffer economic damages, because the property settlement agreement at issue in the state court proceedings was the product of Plaintiff's own fraud. (Doc. 17, pp. 5, 11.) On January 25, 2010, the court granted Defendant's motion for summary judgment on the basis that, due to the application of the occurrence rule, the statute of limitations for Plaintiff to bring a legal malpractice claim against the Connelly Defendants expired on August 2, 2006, two years after the occurrence of the alleged malpractice, which was nearly six months prior to Plaintiff's retention of Defendant in March of 2007. (Doc. 32, pp. 3, 9 of 13.) This court found that, because the statute of limitations had run on Plaintiff's claim against the Connelly Defendants prior to Plaintiff's retention of Defendant, Defendant could not be held liable for failing to commence a time-barred action against the Connelly Defendants. (See id.) Plaintiff appealed that ruling.

Applying the discovery rule instead of the occurrence rule, the United States Court of Appeals for the Third Circuit reversed and remanded, finding that reasonable minds could differ as to whether Plaintiff reasonably knew or should have known of his injury before the Pennsylvania Court of Common Pleas entered its order on the underlying property settlement agreement. (Doc. 37.) Thus, the Third Circuit held that it was not clear from the record whether the statute of limitations had expired on Plaintiff's claims against the Connelly Defendants prior to Plaintiff's retention of Defendant. (Id.)

Approximately one year following the Third Circuit's mandate, Defendant filed the instant motion for summary judgment, in which he argues that the underlying PSA was invalid on its face, and that the Connelly Defendants' actions could not have changed such a conclusion by the state court. (Doc. 51, p. 29 of 30.) Defendant reasons that, because the Connelly Defendants did not commit malpractice, Defendant could not have committed the same for his failure to timely initiate what would essentially have been an unsuccessful lawsuit against the Connelly Defendants. (Id.) On July 9, 2012, Plaintiff filed a brief in opposition (Doc. 57), and an answer to the statement of facts (Doc. 55) with an appendix of exhibits in support thereof (Doc. 56).

On July 23, 2012, Defendant filed a reply (Doc. 58), as well as a motion to strike and brief in support, which sought to strike certain paragraphs of Plaintiff's responsive statement of facts and several exhibits submitted in Plaintiff's opposition to summary judgment (Docs. 59 & 60). Arguing that the exhibits were "riddled with hearsay" and contained "conclusory allegations," and further arguing that the affiants lacked personal knowledge and were, therefore, not competent to testify, Defendant's motion to strike requested that the court exclude the following from Plaintiff's submissions: (1) several paragraphs of Exhibit C, an affidavit of Plaintiff ("Plaintiff's Affidavit"); (2) several paragraphs of Exhibit F, an affidavit of Leonard G. Brown, III, Esquire ("Brown Affidavit"); and (3) the entirety of Exhibit G, an "expert opinion" by N. Christopher Menges, Esquire ("Menges Report"). (Doc. 59.) Furthermore, the motion requested that the court strike the following paragraphs of Plaintiff's responsive statement of material facts: (a) "[Plaintiff] had told his attorneys before-hand that there were multiple witnesses who could have been calledto testify as to [Darlene]'s knowledge of [Plaintiff]'s assets" (Doc. 55, ¶ 9); (b) "These witnesses included: Michael Hanft, [Plaintiff]'s attorney at the time of the signing of the agreement, who would have testified that he advised both parties of each other's assets; Carl Wass, Esquire, who would have testified that he had met with [Darlene] and that Darlene was aware of all of [Plaintiff]'s assets, including his stocks; Charles Pegg, [Plaintiff]'s accountant, and his wife, Becky Pegg, would have testified as to [Darlene]'s knowledge of the stock and its valuation" (Id. at ¶ 10); (c) "[Plaintiff] had given Connelly a list of witnesses who could testify to Darlene's knowledge"(Id. at ¶ 12); (d) "[Defendant] agreed that there was a valid claim but failed to file suit within the applicable statute of limitations period" (Id. at ¶ 17); (e) "[Defendant] failed to file suit within the applicable statute of limitations" (Id. at ¶ 21); (f) "And the underlying case was meritorious" (Id. at ¶ 22); and (g) "[Plaintiff] has filed with the Court the requisite Certificate of Merit establishing that ' . . . an appropriate licensed professional has supplied a written statement that there exists a reasonable probability that the care, skill and knowledge expressed or exhibited by this [Defendant] . . . fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm" and "In addition, the testimony of Leonard Brown, Esquire, would establish that [Defendant] was professionally negligent in failing to file suit before the statute of limitations expired. Furthermore, the preliminary expert report of Christopher Menges, Esquire, establishes that the underlying malpractice claim against [the Connelly Defendants] was meritorious" (Id. at ¶ 23). (Doc. 60, pp. 6-7.)

In response to the motion to strike, Plaintiff submitted, inter alia, a declaration pursuant to Rule 56(d), in which he indicated that discovery had not yetbeen completed. (Doc. 62-1.) Following a telephone conference with counsel, the court issued an order staying the disposition of Defendant's motion for summary judgment and motion to strike, and afforded Plaintiff a period of ninety days in which he was to complete discovery. (Doc. 66.) Following the expiration of the ninety-day stay, Plaintiff timely filed an amended brief in opposition to the second motion for summary judgment (Doc. 80) and an amended responsive statement of material facts (Doc. 81) on January 15, 2013.

On January 29, 2013, Defendant filed a supplemental motion to strike and brief in support. (Docs. 82 & 83.) Defendant's amended motion to strike additionally challenged several paragraphs in Exhibit H, the declaration of Becky Pegg. (Doc. 83, pp. 9-12.) The time for responding has passed,⁵ and the matter is ripe for disposition.

II. Legal Standard

A. Summary Judgement Standard

Defendant moves for summary judgment on the basis that the facts of record clearly establish that Plaintiff would have been unsuccessful in the underlying PSA-litigation, regardless of the Connelly Defendants' actions, and therefore, Defendant could not be held liable for legal malpractice for failing to file a lawsuit that was without merit.

Summary judgment is proper when the record, taken in its entirety, shows that there "is no genuine dispute as to any material fact and the movant isentitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); accord Saldana v. Kmart Corp....