Bailey v. Tucker

Decision Date26 February 1993
Parties, 61 USLW 2595 Clarence BAILEY, a/k/a Clarence W. Bailey and Charles E. Bailey, Appellants, v. Robert E. TUCKER, and Daniel M. Berger, Appellees. Gregory TRICE, Appellant, v. Robert B. MOZENTER, Appellee.
CourtPennsylvania Supreme Court

Andrew Jackson and Mark Feinman, for appellant George Trice.

Deborah D. Otszewski, David H. Trushel & Associates, for appellees Robert E. Tucker and Daniel M. Berger.

Ernest Tannelli, Jeffrey B. Albert, Fox, Rothschild, O'Brien & Frankel, for appellee Robert B. Mozenter.



NIX, Chief Justice. 1

These consolidated appeals present this Court with an opportunity to examine whether counsel in a criminal case may be sued civilly for negligent stewardship. Initially, these cases came before us on the issue of whether the underlying actions were time barred. Although that issue will be addressed, it is overshadowed by a larger concern, to wit: the viability of the very cause of action which these plaintiffs are asserting.

34 W.D. Appeal Docket 1987

Appellant, Clarence Bailey, was convicted by a jury on October 14, 1970, for the first degree murder of Marion Carter and was sentenced to life imprisonment. His father, Charles Bailey, now deceased, had retained Daniel M. Berger, Esquire, to defend his son in these criminal proceedings. Robert E. Tucker, Esquire, at that time an associate of Mr. Berger, was trial counsel.

Following the verdict, a direct appeal was filed with this Court in accordance with the procedure at that time for all convictions for felonious homicide. 2 Appellant, then represented by the Allegheny County Public Defender, argued that the prosecution used racially discriminatory practices in the jury selection. By a per curiam order dated February 11, 1971, this Court remanded the case for an evidentiary hearing on this allegation. Prior to the hearing, appellant, then represented by privately-retained counsel, filed a petition under the then extant Post Conviction Hearing Act (PCHA). 3 In this petition, Mr. Bailey alleged, inter alia, that trial counsel had been ineffective. On November 2, 1973, an evidentiary hearing was conducted on both our remand order and the PCHA petition.

The lower court found the jury selection argument meritless; however, the court granted post-conviction relief by finding that appellant's trial counsel had been ineffective for failing to file a brief in support of post-verdict motions. The court set aside its order dismissing appellant's post-verdict motions and directed that these motions be briefed and argued before the court en banc. That court ultimately denied the motions on the merits on August 6, 1976.

The case came before this Court a second time on direct appeal of the judgment of sentence. 480 Pa. 329, 390 A.2d 166 (1978). This Court reversed the judgment of sentence and remanded the case for a new trial, issuing a plurality opinion in support of its action. 4 The basis for this decision was the determination that counsel was ineffective for failing to investigate and to pursue adequately an intoxication defense.

A second trial was held, and on November 10, 1978, appellant was found guilty of voluntary manslaughter. At that point, appellant had served nine years of his life imprisonment sentence. The maximum sentence for voluntary manslaughter was ten years. Under the circumstances the Court of Common Pleas imposed a sentence of time served and released appellant.

On October 22, 1980, appellant commenced an action by writ of summons against Tucker and Berger in the Court of Common Pleas of Allegheny County, alleging both negligence and breach of contract for failing to pursue the intoxication defense. Appellees filed an answer and new matter raising the statute of limitations as a defense. Thereafter, appellees filed a motion for summary judgment pursuant to Rule 1035 of the Pennsylvania Rules of Civil Procedure. The trial court, applying a two year personal injury statute of limitation, held that the action was time barred and granted the motion for summary judgment. This order was affirmed by the Superior Court, 360 Pa.Super. 617, 517 A.2d 198 (1986) (memorandum opinion), and appellant thereafter sought allowance of appeal, which was granted by this Court. 514 Pa. 645, 524 A.2d 492 (1987).

42 E.D. Appeal Docket 1987

In the second appeal, Gregory Trice, along with seven co-defendants, was charged with various drug-related federal offenses and prosecuted in the United States District Court for the Eastern District of Pennsylvania. Appellant retained the services of Robert B. Mozenter, Esquire, to represent him in these proceedings. This agreement was apparently oral as no written attorney-client agreement has been advanced. On March 25, 1975, appellant was convicted by a jury 5 and sentenced to serve fifteen years in a federal penitentiary. The judgment of sentence was affirmed by the United States Court of Appeals for the Third Circuit on December 23, 1976.

On November 3, 1978, appellant acting pro se, filed with the United States District Court a petition to vacate his sentence pursuant to 28 U.S.C. § 2255 because of ineffective assistance of counsel. Appellant alleged, inter alia, that counsel rendered ineffective assistance in failing to adequately investigate potentially exculpatory physical evidence (specifically a voice exemplar). The District Court denied this petition. On June 10, 1980, the United States Court of Appeals for the Third Circuit reversed the District Court and ordered it to hold an evidentiary hearing with respect to the ineffectiveness claim. Following the hearing, the District Court determined that counsel was ineffective but nonetheless denied relief by reasoning that appellant had not suffered prejudice as a result of the ineffectiveness.

Appellant appealed this decision to the Court of Appeals and, again, that court reversed the District Court and ordered that appellant be given a new trial. 6 The following month appellant was released from prison. On September 23, 1983, the United States Attorney's Office elected to dismiss the indictments against him.

On August 9, 1984, a complaint was filed against appellant's trial counsel (appellee Mozenter) in the Court of Common Pleas of Philadelphia County. This complaint alleged both negligence and breach of contract. In the new matter, appellee raised the statute of limitations as an affirmative defense. Subsequently, appellee filed a motion for judgment on the pleadings pursuant to Rule 1034 of the Pennsylvania Rules of Civil Procedure. The court granted the motion based on its determination that the statutory period had run. On appeal the Superior Court affirmed, holding that the cause of action accrued in 1978 at the time appellant filed his first appeal in federal court alleging ineffectiveness. 356 Pa.Super. 510, 515 A.2d 10 (1986). Appellant sought review from this Court. We granted allocatur, 514 Pa. 643, 523 A.2d 1132 (1987), and consolidated this case with the Bailey case.

Counsel for both appellants and both appellees submitted briefs, and oral argument was heard on March 11, 1988. After much consideration this Court requested supplemental briefs and reargument on the limited question of whether there should be immunity for attorney malpractice in the criminal setting. Supplementary briefs were submitted by all parties, and reargument was heard on September 27, 1990. After additional consideration, we have now reached a decision.


Although actions in criminal malpractice were once uncommon, 7 they have been occurring with increasing frequency. 8 Such actions can sound in trespass and/or assumpsit and the form of action chosen can be significant both in terms of the elements of the cause of action and in the applicable period of limitation. Since the appellants in these consolidated cases assert causes under both guises we will address both types of cases.


Our courts have traditionally viewed trespass actions alleging criminal defense malpractice in the same manner as other claims of professional negligence. See Alberici v. Tinari, 374 Pa.Super. 20, 542 A.2d 127 (1988); Ei Bon Ee Baya Ghananee v. Black, 350 Pa.Super. 134, 504 A.2d 281 (1986). In a malpractice action based on an attorney's representation in a civil matter, a plaintiff must establish three elements in order to recover:

1. The employment of the attorney or other basis for duty;

2. The failure of the attorney to exercise ordinary skill and knowledge; and

3. That such failure was the proximate cause of damage to the plaintiff.

Rizzo v. Haines, 520 Pa. 484, 499, 555 A.2d 58, 65 (1989). See also Schenkel v. Monheit, 266 Pa.Super. 396, 405 A.2d 493 (1979) (quoting R. Mallen & Levit, Legal Malpractice, 123 (1977)).

In cases involving attorney malpractice arising from representation in the civil arena, the above analysis is appropriate. However, in situations where a criminal defendant attempts to state a cause of action with respect to alleged negligent representation in a criminal proceeding, there are substantial differences which warrant distinct treatment of this cause of action.

Our analysis begins with a review of the factors and considerations advanced by appellees as reasons for adopting absolute immunity for criminal defense lawyers. The reasons include: 1) the threat of a malpractice action for representation of a criminal defendant will have a "chilling effect" on counsel's ability to defend his client fearlessly and independently; 2) as a consequence the system will have difficulty attracting and maintaining attorneys to represent persons charged with crime, and the retention of an attorney will become prohibitively expensive; 3) aggrieved defendants alread...

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