Statute of Limitations; Tolling for Post-Occurrence Malpractice

Clark (Est. of M. Clark) v. Stover, et al., 2019 WL 3502434 (Pa. Super 2019) (unreported), allocatur granted Jan. 28, 2020, appeal docket 2 MAP 2020

The Pennsylvania Supreme Court granted allocatur to determine if the statute of limitations tolls when an attorney continues to represent a client following the occurrence of legal malpractice.

Under Pennsylvania’s occurrence rule, the commencement of the statutory period begins “upon the happening of the alleged breach of duty.” Slip op. at 12, quoting Communications Network International, Ltd. v. Mullineaux, 187 A.3d 951, 960-61 (Pa. Super. 2018). The occurrence of a breach of duty is the “trigger” for a legal malpractice action’s statute of limitations, “not the realization of actual loss.” Slip op. at 12-13, citing Wachovia Bank, N.A. v. Ferretti, 935 A.2d 565, 572 (Pa. Super. 2007). Even when a legal malpractice action is barred by the statute of limitations, two possible exceptions include the equitable discovery rule and fraudulent concealment of the facts. Under the discovery rule,

where the existence of the injury is not known to the complaining party and such knowledge cannot reasonably be ascertained within the prescribed statutory period, the limitations period does not begin to run until the discovery of the injury is reasonably possible. The statute begins to run in such instances when the injured party possesses sufficient critical facts to put him on notice that a wrong has been committed and that he need investigate to determine whether he is entitled to redress.  

Slip op. at 15, quoting Communications Network International, Ltd., 187 A.3d at 961. Under the doctrine of fraudulent concealment,

the defendant may not invoke the statute of limitations, if through fraud or concealment, he causes the plaintiff to relax his vigilance or deviate from his right of inquiry into the facts. The doctrine does not require fraud in the strictest sense encompassing an intent to deceive, but rather, fraud in the broadest sense, which includes unintentional deception.

Slip op. at 20, quoting Fine v. Checcio, 870 A.2d 850, 860-61 (Pa. 2005).

The present case stems from Attorney Jeffery Stover’s  representation of David Clark and Monica Clark (the Clarks) in the matters concerning Daniel M. Clark’s (Decedent) will, which had no provisions for his family. On October 17, 2008, David Clark retained Attorney Stover to object to the grant of Letters Testamentary and Probate based on undue influence. Monica Clark also met with Attorney Stover, but upon Attorney Stover’s recommendation,  was not included as a party in David Clark’s lawsuit. Following a hearing, Orphan’s Court dismissed David Clark’s claims, Superior Court affirmed the dismissal and the Supreme Court denied appeal In July 2010, Ms. Clark hired Attorney Stover to file a cause of action against Decedent’s Estate alleging Decedent improperly converted life insurance benefits and property of Robert Clark, Decedent’s father and Monica Clark’s husband, before he died. In December 2013, Monica Clark’s complaint was dismissed with prejudice for failure to file before the expiration of the two-year statute of limitations period. On October 1, 2015, the Clarks filed a legal malpractice suit against Attorney Stover and his law firm. In their lawsuit, the Clarks alleged that Attorney Stover fraudulently concealed from them the fact he did not request a detailed accounting of decedent’s estate in the underlying will contest as evidenced by a letter from Attorney Stover, stating:

I understand from a very good source that a Civil Action has been or is about to be filed against Leslie McDermott and Edson Craft (and maybe Larry Newton) on account of Ms. McDermott co – mingling and stealing the Estate assets for her own benefit. Apparently there is very little in the way of assets remaining in the Estate.  

Slip op. at 21. The Clarks further alleged that, through fraud or concealment, Attorney Stover made David Clark relax his vigilance as to Attorney Stover’s negligence in the underlying Will contest case by assuring David Clark that he believed the Orphan’s Court’s decision was incorrect and that David Clark could win on appeal.

In 2018, the trial court granted summary judgment in favor of Attorney Stover and his firm finding that David Clark failed to file the legal malpractice claim within the statute of limitations. The trial court found that the action brought against Attorney Stover for breaching his duty by excluding Monica Clark as a party in David Clark’s lawsuit was also barred by the statute of limitations.

Superior Court affirmed the holding that the Clarks’ action was barred by the statute of limitations, and that the equitable discovery rule and fraudulent concealment of facts exception did not apply. The Superior Court reasoned that the equitable discovery rule was inapplicable because there was “nothing in the record suggesting that the Clarks were in any way hindered from immediately assessing Attorney Stover’s appointment” and “the Clarks’ lack of understanding, lack of knowledge, or mistake about the meaning of [Orphan’s Court’s] decision (or Attorney Stover’s action/inaction) does not toll the running of the statute.” Slip Op. at 18.  The Superior Court also reasoned that Stover did not engage in fraudulent concealment because there was “no evidence of an unintentional or intentional act of concealment or that Attorney Stover somehow, through fraud or concealment, caused the Clarks to relax their vigilance to inquire about the breaches allegedly committed by him during the underlying litigation.” Slip Op. at 21.

The Supreme Court granted allocatur to determine:

If an attorney ongoing [sic] represents a client post-occurrence of legal malpractice, should that continuing representation otherwise toll the statute of limitations?

For more information, contact Kevin McKeon or Dennis Whitaker.