In the unpublished decision, Clark v. Stover, No. 1474 MDA 2018, 2019 Pa. Super. Unpub. LEXIS 2910 (Aug. 1, 2019), a unanimous panel of the Pennsylvania Superior Court recently reaffirmed some of the core principles regarding the statute of limitations in legal malpractice cases. The Clark case involved a claim of legal malpractice arising out of a will contest brought by the brother and mother of the decedent. The decedent's will left specific bequests to a number of individuals and charities, but made no provisions for his relatives including his brother (David) and mother (Monica) (collectively, the Clarks).  The Clarks retained Jeffrey Stover of Stover McLaughlin to contest the will asserting undue influence by one of the individuals who received a bequest.

The decedent died on July 14, 2008, Stover was retained by David Clark in September 2008, and a caveat objecting to the grant of letters of testamentary and probate was filed on Oct. 17, 2008. David Clark's claims were dismissed on Nov. 17, 2009. David Clark appealed, and the appeal and a subsequent petition for allowance of appeal were both denied. On July 13, 2010, Monica Clark filed a claim against the estate. The Orphan's Court granted a motion for summary judgment on Monica Clark's claim in December 2013.

On Oct. 1, 2015, the Clarks instituted a legal malpractice claim against Stover. The claim asserted the expert retained by Stover to establish the decedent's weakened intellect had no previous experience as an expert and testified it was the only evaluation in his career where he did not meet with the subject. The court "severely discounted" the expert's testimony. The Clarks also asserted Monica's claim was commenced after the expiration of the statute of limitations. The court granted preliminary objections in part and dismissed Monica's legal malpractice claim sounding in contract and third-party beneficiary claims. The statute of limitations was raised as a defense in a new matter and a summary judgment motion was filed asserting the claims were barred by the statute of limitations.

In general, Pennsylvania favors strict application of the statutes of limitation, and follows the occurrence rule to determine when the statute of limitations begins to run. A cause of action accrues and the limitations period begins as soon as the breach of duty occurs. The limitations period is tolled only until the plaintiff learns about the adverse consequences of the breach of duty. The commencement of the limitations period is not delayed until the disposition of appeals or other proceedings, even if the disposition of the pending proceedings could reverse the adverse outcome. The limitations period is not tolled until a plaintiff suffers actual loss. In legal malpractice actions the limitations period is not stayed while the lawyer continues to represent the plaintiff, and is not tolled until the matter of representation is concluded.

Once the statutory period has expired, the injured party is barred from bringing its cause of action unless the statute of limitations has been tolled. The discovery rule described in Pocono International Raceway v. Pocono Produce, 468 A.2d 468 (Pa. 1983) is applicable to legal malpractice actions with slight modifications. A party asserting a legal malpractice claim is under a duty to use all reasonable diligence to be properly informed of the facts and circumstances upon which a potential right of recovery is based and to institute suit within the prescribed statutory period. The discovery rule will toll the statute of limitations only when a plaintiff is unable, despite the exercise of due diligence, to know of the injury or its cause. The party seeking to invoke the discovery rule bears the burden of establishing the inability to know of the injury despite the exercise of reasonable diligence. Lack of knowledge, mistake or misunderstanding, will not toll the running of the statute. The discovery rule does not require a plaintiff has actual knowledge, but only whether in the exercise of due diligence the information was knowable to the plaintiff. Failure to make an inquiry when information is available is failure to exercise reasonable diligence as a matter of law.

The statute of limitations may also be tolled if through fraud or concealment the defendant causes the plaintiff to relax his vigilance or deviate from his right of inquiry. Mistake, misunderstanding or silence in the absence of a duty to speak cannot form the basis for a fraudulent concealment. The plaintiff bears the burden of proving fraud or concealment by evidence which is clear, precise and convincing.

The Clarks argued their claims were not barred due to the equitable discovery rule as well as concealment of the facts forming the basis for their claims by Stover. The allegation of concealment arose out of a letter which stated:

"I understand from a very good source that a civil action has been or is about to be filed against Leslie McDermott and Edson Craft (and maybe Larry Newton) on account of Ms. McDermott co-mingling and stealing the estate assets for her own benefit. Apparently there is very little in the way of assets remaining in the estate."

The Clarks asserted it was only after receipt of this letter that they "finally knew that there was a major piece of their case that was not included by Stover."

Monica Clark's claims were dismissed because she did not retain Stover until after her claims were already barred by the applicable statute of limitations. The Superior Court noted that the discovery rule is an objective rather than a subjective test, and "there is no genuine issue of material fact that their legal malpractice claims were reasonably discoverable when Judge Daniel Milliron rendered his decision in the underlying will contest case." The Superior Court agreed with the trial court that as a matter of law Stover's letter did not establish fraudulent concealment because it "provides no evidence of an unintentional or intentional act of concealment or that attorney Stover somehow, through fraud or concealment, caused the Clarks to relax their vigilance to inquire about the breaches allegedly committed by him during the underlying litigation." The Superior Court noted that David Clark testified he was aware of the judge's adverse decision within a week of when it was issued. David Clark also testified he believed prior to the appeal of the underlying matter that Stover missed mistakes the judge had made and the judge missed mistakes Stover made. The Superior Court affirmed the summary judgment noting that "nothing in the record suggests the Clarks were in any way hindered from immediately assessing attorney Stover's performance."

The Superior Court decision provides a good overview of the law in Pennsylvania as it pertains to the statute of limitations in legal malpractice cases. The occurrence rule is the basic law of the commonwealth, and parties relying on the discovery rule or claims of fraudulent concealment must be aware of the burden they will face on their claims.

Josh J.T. Byrne, a partner in Swartz Campbell's professional liability group in the firm's Philadelphia office, is also co-chair of the Philadelphia Bar Association's professional guidance committee and the incoming chair of the Pennsylvania Bar Association's professional liability committee.