2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

of reasonable diligence. The standard of reasonable diligence isobjective, not subjective. It is not a standard of reasonablediligence unique to a particular Plaintiff, but instead, a standard ofreasonable diligence as applied to a “reasonable person.”Id. at 167; see also Radman v. Gaujot, 53 Fed. Appx. 606 (3d Cir. 2002) (not precedential) (thehappening of the breach and the injured party’s awareness of the breach, not his knowledge ofthe resulting damage, is the focus of Pennsylvania law) Igbonwa v. Cameron, 2004 U.S. Dist.LEXIS 2128 (E.D. Pa. 2004) (in order to qualify for the discovery rule, a plaintiff must havemade reasonable efforts to protect his own interests, and must show why he was unable todiscover the facts necessary to plead the cause of action); Foueke v. Dugan, 187 F. Supp. 2d 253(E.D. Pa. 2002) (to bring a claim outside of the statute of limitations, a plaintiff faces the burdenof demonstrating that his claim falls into one of the exceptions to the occurrence rule); Amorosov. Morley, No. 00-3496, 2002 U.S. Dist. LEXIS 4989 (E.D. Pa. Mar. 25, 2002) (the statute oflimitations is tolled only if a person in the plaintiff’s position exercising reasonable diligencewould not have been aware of the salient facts) (citing Baily v. Lewis, 763 F. Supp. 802, 806(E.D. Pa. 1991), aff’d, 950 F.2d 721 (3d Cir. 1991); Edwards v. Duane, Morris & Heckscher,LLP, et al., No. 01-4798, 2002 U.S. Dist. LEXIS 16301 (E.D. Pa. Aug. 15, 2002) (discovery rulemay be applied to breach of contract actions “where the injured party is unable, despite theexercise of due diligence to know of an injury or its cause”); cf. Fine v. Checcio, 870 A.2d 850(Pa. 2005) (medical malpractice case in which Supreme Court held that “discovery rule appliesto toll the statute of limitations in any case where a party neither knows nor reasonably shouldhave known of his injury and its cause at the time his right to institute suit arises” and rejectedargument that rule should not extend statute of limitations in any case where cause of injury isdiscovered within original statutory period.)In Whitley v. Allegheny County, No. 07-403, 2008 U.S. Dist. LEXIS 28739 (W.D. Pa.Mar. 24, 2008), Plaintiff filed the instant action in March 2007 and asserted, inter alia, a statelaw claim for professional negligence against his criminal defense attorney (“Defense attorney”).By way of background, Defense attorney represented Plaintiff in the first of two petitions ofpost-conviction relief (“PCRA”) and not the underlying criminal trial. The initial PCRA petitionwas denied. Id. Plaintiff subsequently filed a second PCRA petition. Plaintiff informed thecourt that he was no longer represented and requested appointment of counsel. Different counselwas appointed; but Defense attorney did not formally withdraw. Plaintiff alleged that thecriminal Defense attorney disregarded his duty to Plaintiff by failing to communicate withPlaintiff and failing to perform a proper investigation, which resulted in Plaintiff suffering aprolonged incarceration.The court noted, “[the parties] agree[d] that the appropriate starting point for a legalmalpractice action arising for an underlying criminal representation commences at thetermination of the attorney-client relationship.” However, the parties disagreed as to when theattorney-client relationship terminated. Defense attorney maintained that the relationship endedwhen the first PCRA petition was dismissed and new counsel was appointed; therefore,Plaintiff’s claims fell outside the two year statute of limitations. In response, Plaintiff contendedthat the relationship continued until the denial of the second PCRA petition, approximately tenmonths prior to Plaintiff filing the instant action.160