Trice v. Mozenter

• Court: Pennsylvania Superior Court
• Writing for the Court: POPOVICH
• Citation: Trice v. Mozenter, 356 Pa.Super. 510, 515 A.2d 10 (Pa. Super. Ct. 1986)
• Decision Date: 11 September 1986
• Parties: Gregory TRICE, Appellant v. Robert B. MOZENTER.

Page 10

515 A.2d 10

356 Pa.Super. 510

Gregory TRICE, Appellant v. Robert B. MOZENTER.

Superior Court of Pennsylvania.

Argued April 8, 1986

Filed Sept. 11, 1986.

Andrew J. Jackson, Philadelphia, for appellant.

Ernest Iannelli, Philadelphia, for appellee.

Before BECK, POPOVICH and HOFFMAN, JJ.

POPOVICH, Judge:

This is an appeal from the order of the Court of Common Pleas of Philadelphia County granting a motion for judgment on the pleadings against the plaintiff/appellant, Gregory Trice. We affirm.

Under Pa.R.Civ.P. 1034, a motion for judgment on the pleadings may be granted in cases which are so free from doubt that a trial would clearly be a fruitless exercise. Such a motion is in the nature of a demurrer; all of the opposing party's well-pleaded allegations are viewed as true, but only those facts specifically admitted by him may be considered against him. In making this determination, a court is to consider only the pleadings themselves and any documents properly attached thereto. Moore v. McComsey, 313 Pa.Super. 264, 459 A.2d 841 (1983).

So viewed, the record indicates that in October of 1974, the plaintiff secured the services of Attorney Robert B. Mozenter to defend him in a criminal matter to be tried in the United States District Court for the Eastern District of Pennsylvania. The end result was plaintiff's conviction and sentence for fifteen (15) years imprisonment, which he immediately began serving.

The conviction was affirmed without opinion by the Third Circuit Court of Appeals in 1976. Four years later, plaintiff's petition for a writ of habeas corpus, alleging that he had been inadequately assisted by counsel at trial, was found by the same Court to warrant an evidentiary hearing. Following that proceeding, the District Court entered a ruling finding that, albeit trial counsel had been ineffective, the plaintiff had not been prejudiced by counsel's conduct. On appeal, the Third Circuit reversed and remanded for a new trial. It did so on the basis that trial counsel had been ineffective in failing to conduct an investigation designed to reveal whether a voice exemplar (purportedly of the plaintiff) and an intercepted recording (the sole evidence linking the plaintiff to the crimes charged) contained the same voice. It was this nonfeasance which the Third Circuit concluded prejudiced Trice because:

... the exemplar evidence, if investigated, "might have led to a viable defense and a [favorable] verdict," [U.S. v. ] Baynes, 622 F.2d at 69 [3d Cir.1980] ... and that the failure of Trice's trial attorney so to proceed is not harmless "beyond a reasonable doubt," Chapman, 386 U.S. at 24, 87 S.Ct. at 828.

United States v. Baynes, 687 F.2d 659, 673 (3rd Cir.1982) (Emphasis in original). Baynes was filed on August 11, 1982, and the plaintiff was released from prison on September 17 of the same year. However, it was not until August 9, 1984 that a complaint was filed against the defendant/appellee, Robert B. Mozenter.

The first count of the complaint was in assumpsit and alleged that Mozenter breached his "retainer agreement" by failing, inter alia, to obtain a voice exemplar "pivotal" to the case. Further, the plaintiff claimed to have been unable to "discover" whether Mozenter breached his contract until the August 11, 1982 ruling by the Third Circuit that counsel was ineffective. Prior to that date, it was averred, the plaintiff did not possess the expertise to discover that such a breach had occurred. Lastly, it was contended, Mozenter's breach caused the plaintiff to suffer extreme emotional and physical injury, distress and trauma which he would continue to endure.

The second count sounded in trespass and contended that Mozenter's acts of omission, one of which referred to the failure to secure the voice exemplar, rendered his services less than effective, was the cause of the plaintiff's conviction and deprived him of his freedom for over five and one-half (5 1/2) years. Also, such conduct (negligence and carelessness) impaired the plaintiff's earning capacity and caused him trauma, injury and distress which would continue into the future. In both counts, damages in excess of $20,000.00 were demanded, as well as a separate count for an equal amount in punitive damages for such gross and wanton conduct on the part of Mozenter.

In Mozenter's answer, he denied in material part all of the plaintiff's allegations, albeit he did admit to being retained and hired (for a sum certain) to defend the plaintiff in a criminal suit. In the new matter portion of the reply, Mozenter attributed the conviction to the plaintiff's contravention of the criminal statutes charged and not to any conduct on his part. To the extent that the plaintiff may have been injured by the allegedly tortious conduct or breach of contractual duty by Mozenter, he (the plaintiff) was aware of the same by March 25, 1975 (sentencing date), February 17, 1977 (initial appeal of sentence affirmed), October 31, 1978 (date affidavit in support of Motion To Vacate Judgment signed by the plaintiff), November 3, 1978 (date Memorandum in support of Motion To Vacate Judgment filed), June 30, 1980 (per curiam opinion of Third Circuit remanding for ineffectiveness hearing at 622 F.2d 66), or March 30, 1980 (Memorandum Opinion of District Court denying ineffectiveness claims). Any one of the aforementioned points in time would, as viewed by Mozenter, bar the plaintiff's cause of action as violative of the statutes of limitations as set forth in 42 Pa.C.S. § 5524(2) (providing a two-year limitation period for injury caused by the negligence of another) or § 5525(3) and (4) (allowing a four-year limitation period for a contract implied in law or an express contract not founded upon an instrument).

Trice, in his response to the defendant's new matter, admitted to having read: 1) the October 31, 1978, Affidavit in Support of Motion to Vacate Judgment, along with signing it (Exhibit C); 2) the Memorandum of Law in support of the same dated November 3, 1978, along with executing it (Exhibit D); 3) the June 10, 1980, opinion of the Third Circuit affording him an evidentiary hearing on his Affidavit (Exhibit E); and 4) the March 19, 1981, Memorandum and Order of District Court denying relief after evidentiary hearing (Exhibit F). In each, counsel's effectiveness was either called into question or found not to have been prejudicial to the plaintiff. However, the plaintiff specifically denied understanding the contents of any of the aforecited exhibits. (See Points 5, 7, 9 and 11).

Likewise, in Points 12-17, the plaintiff denied having knowledge of the tortious conduct or breach of contractual duty prior to the August 11, 1982 decision of the Third Circuit holding his trial counsel ineffective and awarding a new trial. As for the applicable statute of limitations, the plaintiff asserted that calculating from the August 11, 1982 date would make his cause of action timely regardless to which statute one looked.

On July 12, 1985, the defendant filed a Motion For Judgment on the Pleadings referring to the affirmative defenses (statutes of limitations) raised in his answer and new matter (passim ), the plaintiff's responses of lack of knowledge and misunderstanding thereto, and that the plaintiff's cause of action, although denominated in assumpsit in count I of the complaint, was actually a claim for injury to the person controlled by the two-year statute of limitations under 42 Pa.C.S. § 5524(2). Therefore, it was contended, the statute of limitations began to run when the plaintiff was convicted (February 1, 1975) and/or incarcerated (March 25, 1975). Accordingly, with the initiation of the complaint some nine (9) years after what the defendant interpreted to be an "injury to the person" claim, the institution of the suit in assumpsit was time-barred. This was so, the defendant offered, irrespective of whether one viewed the suit as one in assumpsit (two-year limitation) or breach of contract (six-year limitation).

Additionally, the defendant wrote that the plaintiff's trespass count was controlled by a two-year statute of limitations which began to run when the negligent act complained of was "done or discovered". The defendant continued that here, "[i]nasmuch as plaintiff by Motion filed November 3, 1978, first raised the claim that defendant was negligent, at the very latest he had to have been aware of the negligent act at that time." Thus, a dismissal of the plaintiff's complaint was requested.

In a Memorandum in support of the Motion, the defendant conceded that "[a] retainer agreement was signed by the parties" in or about October of 1974, with representation terminating with the affirmation of the judgment and, thereafter, the denial of a rehearing on February 17, 1977--seven and one-half (7 1/2) years prior to the commencement of the suit.

Under any of the theories of recovery advanced by the plaintiff, be they in assumpsit (contract) or trespass (tort), the defendant proffered that all causes of action were foreclosed because of untimeliness--an affirmative defense which could not be circumvented by mere allegations of unawareness or lack of expertise on the part of the plaintiff to discover the malpractice, since in 1978 the plaintiff's affidavit in support of his motion to vacate the judgment indicated knowledge of the alleged impropriety.

In answer, the plaintiff denied in relevant part the allegations of his awareness of any factual basis sufficient to characterize his "discovery" of the breach of any contract before the August 11, 1982 Third Circuit ruling in his favor. Similarly, a Memorandum was attached to bolster his position that, despite reasonable diligence, he was unable to ascertain what harm or injury was sustained until the date just stated. Therefore, his suit was timely whether viewed under a two-year (personal injury), four-year or six-year (contract) statute. In any case, the plaintiff urged that his...