Trauma Service Group v. Hunter, Maclean, Exley & Dunn, CIVIL ACTION NO: 99-CV-5979 (E.D. Pa. 3/24/2000)

• Court: U.S. District Court — Eastern District of Pennsylvania
• Writing for the Court: R. F. Kelly
• Decision Date: 24 March 2000
• Docket Number: CIVIL ACTION NO: 99-CV-5979.
• Citation: Trauma Service Group v. Hunter, Maclean, Exley & Dunn, CIVIL ACTION NO: 99-CV-5979 (E.D. Pa. 3/24/2000) (E.D. Pa. 2000)
• Parties: TRAUMA SERVICE GROUP, P.C., Plaintiff, v. HUNTER, MACLEAN, EXLEY & DUNN, P.C., Defendants.

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TRAUMA SERVICE GROUP, P.C., Plaintiff, v. HUNTER, MACLEAN, EXLEY & DUNN, P.C., Defendants.

CIVIL ACTION NO: 99-CV-5979.

United States District Court, E.D. Pennsylvania.

March 24, 2000.

MEMORANDUM

R.F. KELLY, Judge.

This diversity case is a legal malpractice action arising out of the representation provided by the law firm of Hunter, MacLean, Exley & Dunn. P.C. ("Hunter Maclean") for Trauma Service Group, P.C. ("Trauma") in defending against a medical malpractice claim brought against Trauma. Before this Court is Hunter Maclean's Motion for Summary Judgment. For the reasons that follow, the motion is granted.

I. BACKGROUND.

Trauma is a professional corporation with its primary business location in Coatesville, Pennsylvania. Hunter Maclean is also a professional corporation with its primary place of business located in Savannah, Georgia. On January 30, 1995, Trauma entered into an Agreement for Attorney Services ("the agreement") which authorized Hunter Maclean to defend Trauma in a medical malpractice action filed in the United States District Court for the Southern District of Georgia. The case was captioned Patrick M. Branham, Individually and as Administratrix of the Estate of Frankie J. Branham, Deceased v. Trauma Service Group, P.C. and S.C. Love, M.D. (the "Branham action").

Pursuant to the agreement, which is in letter form and addressed to Diana R. Kadish, Esquire ("Ms. Kadish"), Trauma's General Counsel, Hunter Maclean would serve as local counsel for Trauma in the Branham action. The agreement also provided that Ms. Kadish would serve as lead counsel, and that she would advise Hunter Maclean of the specific tasks she wished Hunter Maclean to perform. Further, Hunter MacLean agreed to submit to Ms. Kadish monthly statements representing the bill for Hunter Maclean's services in connection with the Branham action, and it explained Hunter Maclean's hourly billing rates. Hunter Maclean has attached as exhibits to its motion billing statements that it claims to have provided to Trauma for the following months: February, 1995¹; April, 1995; May, 1995; June, 1995; August, 1995; October, 1995; and January, 1996. Pursuant to the agreement, payment was to be due upon receipt of each monthly statement, and any objection to a particular statement was to be made within fifteen days of its receipt.

On February 10, 1995, the United States Court for the Southern District of Georgia granted Ms. Kadish's motion, prepared by Hunter Maclean pursuant to the agreement, for special admission to practice pro hac vice before that court in connection with the Branham action. On August 7, 1995, approximately six and a half months after being retained by Trauma, Hunter Maclean filed a Motion for Summary Judgment on Trauma's behalf as defendant in the Branham action, which was granted on January 3, 1996. At that time, the bill for Hunter Maclean's services was approximately $17,095.79, and had not been paid. By letter dated January 18, 1996, Hunter Maclean requested payment in full of the bill, pursuant to the agreement.

On approximately March 4, 1996, Trauma made a partial payment toward the outstanding bill. In an accompanying letter, Dr. Joseph Nowoslawski, President of Trauma, promised to furnish Hunter Maclean with a schedule of payment by late summer of 1996, and to pay Hunter Maclean the remaining balance on the bill at an interest rate of 8% "for [Hunter Maclean's] kindness." The letter also expressed Trauma's thanks for "the fine job that you did for the group," and stated that Hunter Maclean's "work is very extraordinary in its professional approach and excellent technical ability." Id. Further, by letter dated March 21, 1996, Dr. Nowoslawski again apologized for Trauma's late payment record, and inquired into obtaining Hunter Maclean's services in connection with another lawsuit. Dr. Nowoslawski also claimed that Trauma expected to be able to "get current" with its financial obligations within several months.

Nearly six months later, by letter dated September 6, 1996, Hunter Maclean again requested payment in full of the $15,647.86 past due bill, advising Trauma that its last partial payment toward the bill was received over six months prior. However, no further payment was forthcoming.

Subsequently, in October of 1997, Hunter MacLean filed an action in the State Court of Georgia, Chatham County, ("the Chatham County action"), seeking to recover the outstanding balance of $15,647.86 owed by Trauma. However, Trauma's Answer was stricken by the state court due to Trauma's failure to provide discovery in connection with that action, and judgment was entered in favor of Hunter Maclean in the amount of $15,647.86.

While the Chatham County action was pending, Trauma filed a Writ of Summons against Hunter Maclean in the Chester County Court of Common Pleas in Pennsylvania on December 5, 1997. However, Trauma failed to prosecute this action and the Chester County Prothonotary entered a judgment of non pros against Trauma on August 31, 1998.

Over one year later, on October 28, 1999, Trauma filed a complaint in the Chester County Court of Common Pleas against Hunter Maclean, alleging: (1) negligence/breach of contract; (2) fraudulent misrepresentation; (3) fraudulent inducement; (4) negligent misrepresentation; and (5) punitive damages. On December 6, 1999, Hunter Maclean filed a Notice of Removal in the Chester County Court of Common Pleas, and the action was subsequently transferred to this Court.

In connection with the present action, Hunter Maclean claims to have served Trauma with Requests for Admissions on December 7, 1999, to which Trauma never responded. Although Hunter Maclean never requested that the Clerk of Court enter an order deeming the Requests for Admission admitted, Hunter Maclean now claims that the Requests for Admission should be so deemed. Trauma asserts, in its three-page opposition to Hunter Maclean's summary judgment motion, that "this is the first time plaintiff's counsel has seen these admissions," and that the admissions are "specifically denied." Pl.'s Resp. Def.'s Mot. Summ. J. at 5 ("Pl.'s Resp."). However, this Court need not determine the status of the Requests for Admissions, as the facts of record clearly establish that summary judgment in favor of Hunter Maclean is warranted.

II. STANDARD OF REVIEW.

"Summary judgment is appropriate when, after considering the evidence in the light most favorable to the nonmoving party, no genuine issue of material fact remains in dispute and `the moving party is entitled to judgment as a matter of law.'" Hines v. Consolidated Rail Corp., 926 F.2d 262, 267 (3d Cir. 1991) (citations omitted). "The inquiry is whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one sided that one party must, as a matter of law, prevail over the other." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The moving party carries the initial burden of demonstrating the absence of any genuine issues of material fact. Big Apple BMW, Inc. v. BMW of North America, Inc., 974 F.2d 1358, 1362 (3d Cir. 1992), cert. denied, 507 U.S. 912 (1993). Once the moving party has produced evidence in support of summary judgment, the nonmovant must go beyond the allegations set forth in its pleadings and counter with evidence that demonstrates there is a genuine issue of fact for trial. Id. at 1362-63. Summary judgment must be granted "against a party who 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 of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

III. DISCUSSION.

Trauma's complaint alleges legal malpractice claims under both contract and tort theories. "A plaintiff may combine tort and contract claims in one malpractice complaint . . . by asserting that defendants have breached both specific contractual terms and a general lawyers' duty of care." Sherman v. Goldhammer, 683 F. Supp. 502, 506 (E.D.Pa. 1988) (citing Guy v. Liederbach, 459 A.2d 744, 748 (Pa. 1983)).² In order to establish a claim for legal malpractice, a plaintiff must show: (1) the employment of the attorney or other basis for duty; (2) the failure of the attorney to exercise ordinary skill and knowledge of a similar attorney; and (3) that such negligence was the proximate cause of damage to the plaintiff. Sherman, 683 F. Supp. at 506.

However, this Court is at a loss to find any legal authority in which a plaintiff attempted to bring a legal malpractice claim based upon, or despite, the successful disposition of the underlying claim giving rise to the action. Indeed, one of the elements a plaintiff must prove in bringing a legal malpractice claim is damages, namely that he would have prevailed in the underlying action but for the attorney's negligence. Duke & Co. v. Anderson, 418 A.2d 613, 617 (Pa. 1980); McCartney v. Dunn & Conner, Inc., 563 A.2d 525, 528 (Pa.Super. 1989). Thus, the concept of malpractice would seem to encompass the requirement that the disposition of the underlying case was adverse to the client. In the instant case, however, Trauma cannot prove that it would have prevailed in the Branham action because it did prevail, a fact which would appear to yield the logical conclusion that no malpractice occurred. Nevertheless, we will address Trauma's tort and contract claims.

A. Trauma's tort claims are barred by the statute of limitations.

All of the above allegations contained in Trauma's Complaint in the instant action pertain to the quality of Hunter Maclean's representation of Trauma in the Branham action. As such, Trauma's tort claims are barred by the statute of limitations. Under Pennsylvania law, "a two year statute of limitations applies to `any . . . action or proceeding to recover damages for injuries to person or property which is founded on negligent . . . or otherwise tortious...