2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

F. Supp. 502 (E.D. Pa. 1988), explained, “[a] malpractice plaintiff may not sidestep the two-yearlimitation on tort actions by pleading tort claims as breaches of contract.” Id.The Pennsylvania Supreme Court recently held in Steiner v. Markel, 968 A.2d 1253(2009), that Plaintiffs had waived their right to argue that their professional malpractice claimshould be construed as a contract claim, in order to avoid the two-year limitation, when theirComplaint did not contain a claim described as a breach of contract claim. Additionally, theCourt held that the Superior Court may not sua sponte, search within a complaint to find a causeof action that Plaintiffs never argued was present in their complaint. Id.Under Pennsylvania law, the occurrence rule is used to determine when the statute oflimitations begins to run. Fiorentino, 693 A.2d at 208. Under this rule, “the statutory periodcommences when the harm is suffered, or if appropriate, at the time an alleged malpractice isdiscovered.” Id.; see also Deere & Co. v. Reinhold, No. 99-CV-6313, 2000 U.S. Dist. LEXIS5276 (E.D. Pa. Apr. 24, 2000) (a cause of action for legal malpractice accrues on the date theharm is suffered and not on the date that the attorney-client relationship ends); TowerInvestments, Inc. v. Rawle & Henderson, LLP, 2009 Phila Ct. Com. Pl. LEXIS 18 (Phila. Cty.Ct. Com. Pl. Apr. 7, 2009) (holding “[t]he statute of limitations in legal malpractice actionsbegins upon the happening of an alleged breach of duty and is tolled only when the client,despite the exercise of due diligence, cannot discover the injury or its cause”).To date, Pennsylvania courts have expressly rejected the “continuing representationexception” under which a claim for malpractice accrues upon termination of the professionalrelationship which gave rise to the alleged malpractice. See, e.g., Glenbrook Leasing Co. v.Beausang, 839 A.2d 437, 441-42 (Pa. Super. Ct. 2003), appeal granted, 870 A.2d 318 (Pa. 2005),aff’d, 881 A.2d 1266 (Pa. 2005); see also Ward v. Knox McLaughlin Gornall & Sennett, No. 09-68, 2009 U.S. Dist. LEXIS 86058 (W.D. Pa. Sept. 21, 2009) (citing Glenbrook, court refused toapply “continuous representation rule”). It is noteworthy, however, that after the SuperiorCourt’s discussion of the continuous representation rule in Glenbrook, and acknowledgmentthere that adoption of this rule would have to come from the Supreme Court, the PennsylvaniaSupreme Court has granted an appeal in this case limited to the issue of “[w]hether thecontinuous representation rule should be adopted in Pennsylvania to toll the applicable statute oflimitations in an action for legal malpractice.” Glenbrook Leasing Co. v. Beausang, 870 A.2d318 (Pa. 2005). Without issuing a written opinion, the Supreme Court affirmed the SuperiorCourt’s decision. Glenbrook Leasing Co. v. Beausang, 881 A.2d 1266 (Pa. 2005).If the discovery rule applies, the statutory period commences at the time the allegedmalpractice is discovered. Davis v. Grimaldi, Haley & Frangiosa, P.C., No. 97-CV-4816, 1998U.S. Dist. LEXIS 15681 (Pa. Super. Ct. 1998) (citing Bailey v. Tucker, 621 A.2d 108, 115 (Pa.1993)). The discovery rule “provides that where the existence of the injury is not known to thecomplaining party and such knowledge cannot reasonably be ascertained within the prescribedstatutory period, the limitations period does not begin to run until the discovery of the injury isreasonably possible.” Id. at 4-5 (citing Dalrymple v. Brown, 701 A.2d 164, 167 (Pa. 1997)).The Dalrymple Court discussed the standard for the application of the discovery rule:The party seeking to invoke the discovery rule bears the burden ofestablishing the inability to know of the injury despite the exercise159