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Supreme Court of Pennsylvania Grants Certiorari to Determine Whether the “Continuous Representation Rule” Should be Adopted in Pennsylvania to Toll the Statute of Limitations in an Action for Legal Malpractice


Glenbrook Leasing Company v. Beausang, 839 A.2d 437 (Pa.Super. 2003), cert. granted March 11, 2005 by the Pennsylvania Supreme Court


By:  Matthew S. Marrone, Esquire


Plaintiff (a real estate partnership) retained the defendant law firm on or about October 1987 to prepare an agreement of sale and deed in connection with plaintiff’s proposed purchase of office space for medical offices. In addition to the sale and purchase of office space, the agreement of sale also stated the seller (who was maintaining ownership of certain exterior portions of the premises) would reserve parking spaces for the use of the buyer and the buyer’s patients.  The real estate closing occurred on April 21, 1988, at which time a deed for office space was conveyed to plaintiff, but was silent with respect to the parking spaces. The defendant law firm’s representation of plaintiff in the real estate transaction concluded in 1988.

Plaintiff used the parking spaces without incident until 1994, when a dispute arose with the owner of the outside common elements.  On October 11, 1994, plaintiff became aware title to the parking spaces was never conveyed, and on November 21, 1994 the defendant law firm was accused of legal malpractice in a letter sent by the owner of the common elements (on which plaintiff was copied).  However, plaintiff did not immediately pursue any legal action against defendant.  Instead, litigation regarding the parking spaces commenced between the common elements owner (plaintiff) and Glenbrook (defendant), in which Glenbrook requested the defendant law firm represent it.  This litigation culminated in December 1999 with a bench trial at which the common elements owner prevailed.

Thereafter, Glenbrook initiated suit on December 6, 2000 against the defendant law firm for legal malpractice.  Following discovery, the court granted the defendant’s motion for summary judgment based on the statute of limitations.  The trial court noted Pennsylvania follows the “occurrence rule,” which mandates the statute of limitations commences upon the happening of the alleged breach of duty.  Although the “equitable discovery rule” will toll the running of the statute in situations where an injured party is unable - despite the exercise of due diligence - to know of the injury or its cause, a lack of knowledge, mistake or misunderstanding will not toll the running of the statute.  The trial court found, at a minimum, Glenbrook knew of the defendant law firm’s alleged negligence as early as November 21, 1994, but chose not to file suit until December 6, 2000, well beyond the two-year statute of limitations for legal malpractice actions.

On appeal to the Superior Court of Pennsylvania, plaintiff argued (inter alia) that in legal malpractice actions, instead of the “equitable discovery rule” the court should apply the “continuous representation rule,” under which the statute of limitations would not commence running until December 1, 2000 when plaintiff fired the defendant law firm.  Glenbrook argued the “vast majority of other jurisdictions” have accepted the concept that the continuous representation of a client by an attorney tolls the running of a statute of limitations, and cited other Pennsylvania cases wherein plaintiff claimed it was “tacitly acknowledged” Pennsylvania courts follow the continuous representation rule.  Not only was the Superior Court unpersuaded by plaintiff’s arguments and case citations, it further noted it was not empowered to announce such a sweeping change in the law relating to when the statute of limitations begins to accrue, finding this is a task best entrusted to the Supreme Court of Pennsylvania or the General Assembly.

The fact the Supreme Court has agreed to hear plaintiff’s appeal from this decision seems to indicate it is at least somewhat intrigued by plaintiff’s argument, and feels it is worth consideration.  Whether or not it will adopt such a “sweeping change” remains to be seen, and we will report future developments on this issue and case.

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