301 Market St. v. Wheeler, J.

J-S29004-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
301 MARKET STREET, LLC., GENERAL IN THE SUPERIOR COURT OF
PARTNER FOR AND ON BEHALF OF 301 PENNSYLVANIA
MARKET STREET PARTNERS, LP
Appellant
v.
JONATHAN WHEELER, ESQUIRE AND
LAW OFFICES OF JONATHAN WHEELER,
P.C.
Appellee No. 2658 EDA 2016
Appeal from the Judgment Entered July 19, 2016
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 01818 December Term, 2013
BEFORE: LAZARUS, J., SOLANO, J., and STEVENS, P.J.E.*
MEMORANDUM BY LAZARUS, J.: FILED MAY 23, 2017
301 Market Street, LLC., general partner for and on behalf of 301
Market Street Partners, LP, (“Plaintiff”), appeals from the judgment, entered
in favor of Appellee, Jonathan Wheeler, Esquire, and the Law Offices of
Jonathan Wheeler, P.C., (“Wheeler”), in this legal malpractice action. We
affirm.
The underlying legal malpractice lawsuit arises out of Wheeler’s
representation of Plaintiff in a property damage suit filed against a pizza
shop adjacent to Plaintiff’s property. Plaintiff discovered cracking and other
____________________________________________
*
Former Justice specially assigned to the Superior Court.
J-S29004-17
structural damage to its property, 301 Market Street. On February 6, 2014,
Plaintiff’s attorney, Jeffrey Wolfson, Esquire, (Wolfson) filed a complaint in
professional negligence against Attorney Wheeler averring that after an
inspection of Plaintiff’s 301 Market Street Property, it was “revealed [that] a
number of structural defects, mainly cracks on the masonry walls [were]
cause[d] in large measure [by] the vibrations caused by the use of large
mixing machines by an adjacent Pizzeria Restaurant.” Plaintiff’s First
Amended Complaint, 2/6/14, at ¶ 6. Because Attorney Wheeler did not file
a writ of summons to commence Plaintiff’s property damage action until
August 16, 2013, more than two years after the date of the property
inspection, Plaintiffs alleged that “as a direct and proximate result of
[Attorney Wheeler’s] failure to file the [c]ivil [a]ction on a timely basis . . .
Plaintiff has been caused to suffer damages.” Id. at ¶ 15.
In the underlying property damage case, Plaintiff retained the services
of Walter Green, a forensic architect, who inspected the subject area of the
cracks and the building; Green prepared a preliminary report on August 9,
2011. In his report, Green opined that:
The cracks observed in the common masonry wall with the
pizzeria on 3rd Street were not consistent with building
settlement or general latent displacement of the exterior wall.
The damage observed was consistent with several causes.
Given the evidence of water infiltration, the crack was consistent
with water infiltrating the wall, experiencing a freeze/thaw cycle
in the unheated space, which would cause the brick to crack. An
alternative consistent source of the damage observed was the
failure of a wood lintel supporting the masonry wall between the
second and third floor. Further removal and demolition of wall
finishes would be necessary to expose the cracks and supporting
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structure to make a more positive determination. The use of
large mixing machines in the pizzeria to the north on 3rd
Street was consistent with contributing to the damage
due to vibration in floors and walls. Measurements of
vibration during machinery operation would be required
to verify this observation. The cracks observed in the
exterior wall observed on 3rd Street were consistent with a
localized failure of a window lintel and did not appear to be the
result of building settlement.
Walter E. Green Preliminary Building Inspection Report,1 10/12/11, at 2
(emphasis added).
On November 30, 2015 and December 1, 2015, the Honorable Eugene
Maier held a bifurcated, non-jury trial in the malpractice action. Following
trial, Judge Maier entered findings of fact and conclusions of law to support a
verdict in favor of Attorney Wheeler. Specifically, Judge Maier found, in
part, the following facts:
 Plaintiff asserts that the statute of limitations required a claim to be
filed by August 9, 2013, which was two years from the [date of loss
(DOL)], which was August 9, 2011. [Wheeler] argues the DOL was
August 19, 2011, or thereafter, and that the earliest date of required
filing was August 19, 2011[;]
 [T]he [c]ourt bifurcated the case and took testimony on that issue
only, indicating testimony on other issues would be taken if the claim
was not filed within the time required by the statute of limitation[s;]
 The parties also agreed that the statute of limitations for this cause
would be two years2 from the DOL and that a Writ of Summons was
filed on August 16, 2011[;]
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1
Although Green’s report is dated October 12, 2011, his actual inspection of
Plaintiff’s property was conducted on August 9, 2011.
2
See 42 Pa.C.S. § 5524.
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 The credible evidence presented indicated that Mr. Wolfson a majority
or sole owner of Plaintiff did not object to [Wheeler’s] communication
with Wolfson indicating [the] DOL [was] August 19, 2011. Also,
[Wheeler’s] credible evidence indicated that in conversations with
Wolfson, Wolfson had told [Wheeler] that the DOL was August 19,
2011. In addition, [Wheeler’s] expert opined that the DOL was August
19, 2011[;]
 Wolfson’s testimony and that of his expert that the DOL of August 19,
2011[,] pertained to a potential claim against [Plaintiff’s] . . .
Insurance Company has no basis in fact and is without merit[; and]
 The [c]ourt finds that there can only be one [DOL] herein, and that
DOL was August 19, 2011[,] and that the Writ of Summon was filed
timely[.]
Trial Court Findings of Fact/Conclusions of Law, 12/16/15, at 1-2.
Plaintiff filed post-trial motions that were denied by the trial court on
July 19, 2016; judgment was entered simultaneously on the verdict.
Plaintiff then filed a timely notice of appeal and court-ordered Pa.R.A.P.
1925(b) concise statement of matters complained of on appeal. On appeal,
Plaintiff raises the following issues for our consideration:
(1) Whether the Court committed an error of law/abuse of
discretion when it ruled the statute of limitations began to
toll in the underlying matter on August 19, 2011 without
the support of any competent evidence or testimony.
(2) The subsequent, Post Trial Court abused its discretion
wherein it speculated on the original Trial Judge’s intent,
rational or reasoning regarding the issue of [Wheeler’s]
right to rely on information relative to the date upon which
the statute of limitations began to toll.
(3) In the alternative, the Trial Court committed an error of
law/abuse of discretion and [Plaintiff] was unduly
prejudiced, by barring [Plaintiff] from fully litigating,
developing and defending against the argument or defense
that [Wheeler] had a right to rely on information provided
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to them regarding the date upon which the statute of
limitations began to toll.
In Sokolsky v. Eidelman, 93 A.3d 858 (Pa. Super. 2014), our Court
set forth a plaintiff’s standard of proof in a legal malpractice action, as
follows:
[A] legal malpractice action in Pennsylvania requires the plaintiff
to prove that he had a viable cause of action against the party
he wished to sue in the underlying case and that the attorney he
hired was negligent in prosecuting or defending that underlying
case (often referred to as proving a “case within a case”).
Id. at 862 (citation omitted). Moreover, to establish a legal malpractice
claim, the plaintiff must satisfy the following three-prong test.
1) [E]mployment of the attorney or other basis for a duty;
2) the failure of the attorney to exercise ordinary skill and
knowledge; and
3) that such negligence was the proximate cause of damage to
the plaintiff.
Kituskie v. Corbman, 714 A.3d 1027, 1029 (Pa. 1998) (citation omitted)
(emphasis added).3
Generally, once the prescribed statutory period has expired on a
cause of action, the complaining party is barred from bringing suit.
Hayward v. Medical Center of Beaver County, 608 A.2d 1040, 1043 (Pa.
____________________________________________
3
With regard to the underlying lawsuit filed against the pizza shop, we
recognize that “[a] question regarding the application of the statute of
limitations is a question of law.” K.A.R. v. T.G.L., 107 A.3d 770, 775 (Pa.
Super. 2014) (citation and internal quotation marks omitted). Our standard
of review over questions of law is de novo and, to the extent necessary, the
scope of our review is plenary as the appellate court may review the entire
record in making its decision. Id. (citation omitted).
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1990). The “discovery rule,” however, is an exception to that rule, and its
application tolls the running of the statute of limitations. Id. With regard to
the discovery rule, we recognize that it is a judicially created device that
tolls the running of the applicable statute of limitations until that point when
the plaintiff knows or reasonably should know: (1) that he has been
injured; and (2) that his injury has been caused by another party's conduct.
Kituskie, 714 A.3d at 779-80.
Instantly, the statute of limitations on Plaintiff’s cause of action against
the pizza shop accrued when Plaintiff knew or reasonably should have known
that 301 Market Street had suffered damages and that the damage had been
caused by the pizza shop’s conduct. Id. Attorney Wheeler contends that
the Plaintiff led him to believe that the DOL on the underlying action against
the pizza shop occurred on August 19, 2011, when Plaintiff sent a letter to
its insurer informing the company that there was a crack in the wall of 301
Market and that Plaintiff intended to make a claim under its policy. Plaintiff,
however, averred that the DOL was the date that Green conducted his
inspection of the building on Plaintiff’s behalf, on August 9, 2011. At trial,
both parties offered expert testimony to support their claimed DOL.
It is evident that the trial judge, as factfinder, chose to believe the
defense expert, Allen Gordon, Esquire, who opined, after reviewing relevant
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documents,4 that Attorney Wheeler was not negligent in reasonably relying
upon information from Wolfson that the statute of limitations began to run
on August 16, 2011, where: Wolfson never corrected information in letters
he received from Wheeler indicating that the DOL was August 19 th; the
August 9th Green Report was considered “preliminary;” and it was
reasonable for Wheeler to not consider August 9th as the DOL where the
Green Report indicated further tests would have to be conducted to
determine that the pizza shop was the cause of Plaintiff’s damage. See N.T.
Trial (Waiver), 12/1/15, at 33-35.
After reviewing the parties’ briefs, relevant case law and record on
appeal, we agree with the trial court that judgment was properly entered in
this case where Wheeler did not breach his duty of care when he reasonably
believed that the DOL in Plaintiff’s underlying action against the pizza shop
occurred on August 19, 2011. Because Attorney Wheeler filed the Writ of
Summons on Plaintiff’s property damage claim within the two-year statute of
limitations, Attorney Wheeler did not “fail[] . . . to exercise ordinary skill and
knowledge,” Kituskie, supra, a prerequisite to proving a legal malpractice
____________________________________________
4
Those documents included: Plaintiff’s complaint; Attorney Wheeler’s
response to complaint; Plaintiff’s engineer’s Limited Structural Assessment
Report; Green’s Report; Plaintiff’s expert report; correspondence between
Wolfson and Wheeler, including text and email messages; and 301 Market
Street property photos. See Allan H. Gordon Expert Opinion, 7/2/15, at 1.
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claim. We, therefore, rely upon The Honorable Idee C. Fox’s5 July 19, 2016
post-trial opinion and October 12, 2016 addendum to opinion, and Judge
Maier’s December 16, 2015 findings of fact and conclusions of law in
disposing of Plaintiff’s issues on appeal. We instruct the parties to attach a
copy of Judge Fox’s and Judge Maier’s decisions and findings/conclusions in
the event of further proceedings in the matter.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/23/2017
____________________________________________
5
Judge Maier retired as of December 31, 2015.
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Rec-eived 1/9t201? 10:22:1 O AMCirculated
Supe1ior Ccxirt Easte,n
05/12/2017 District
03:48 PM
Reotived 9/12.1201610:49:51 AM Supertor Cou1 Eastem District
IN THE COURT 0~ COMMON PLEAS OF PHILADELPHIA COU ,,
FIRST JUDICIAL DISTRICT 01' PENNSYLVANIA
301 MARKET STREF.T, LLC,
CIVIi, TRIAL OJVJSION "' '
,•
,..
,.,
Gt:ncrul Partner for and on behalf of
301 MARKET STREET PARTNERS,LP: DECEMBERTF.RM, 2013
Plaintiff
No. 1818
DEC 21 2015
v
.JONATHAN WHEEL~;R, ESQ. J.STEWART
And
301 A.1.1,ket Slrecl. Uc WSFFO
4
LAW OFFICES OF .JONATHAN
WHEELER, P.C.
1111111/I 1111111111111111/IIIll
Defeudnufs 13120181800086
FINDINGS OF FACT AND CONCj,USTONSOF LAW
I. This is o case alleging Legal Mal Practice by Defendant, based on his handling of a damage
claim ofl'laintiff.
2. \Vben the case was called to trial the coun was informed that all partiesagreed that the
inilial and dispositivc issue 10 be determined was whether lhe Defendant filed and action
within 1hc rime required by the statute of limitations.
3. Ptainiiff asserts thal lhe statute of lirnltations required a claim to be filed by August 9,
2013. which was two years from the Date of Loss (DOL), which was Augt1st 9, 2011.
Defendants argues the OOr. was August l9, 2011 or thereafter, and rhat the earliest date of
rcquiccd filing was August 19, 2011.
4. Accordingly, the Court bifurcated the case and took testimorty on thal issue only, indicating
testimony on other issues would be: taken if lhc claim was not filed within the time required
by 1he )11.1tu1e of limitation,
S. The parties also agreed that the sl11t111e of limitetious for this cause would be two years
from the DOLand thnt n \Vril of Summons wns filed on August 16, 2011.
Case ID: 131201818
RR480a
6. The credible evidence presented indicated that Mr. Wolfson (Wolfson) a majority or sole
owner of Plaintiff did not object to Defendant's communication with Wolfson indicating
DOL of August 19, 2011. Also, Defendant's credible evidence indicated that in
conversations with Wolfson, Wolfson had told Defendant that the DOL was August J 9,
2011. In addition the Defendant's expert opined that the DOL was August 19, 2011.
7. Wolfson's testimony and that of his expert that the DOL of August 19, 2011 pertained to a
potential claim against Regis Insurance Company has no basis in fact and is without merit.
8. The Court finds that there can be only one date of loss herein, and that DOL was August
19, 2011 and that the Writ of Summons was filed timely.
9. Therefore Verdict is entered for Defendant.
10. In addition, the Plaintiffs Architects expert's report purporting to assign negligence
indicated that several items were consistent with a cause of damage to plaintiff but that
further investigation, measurements, and construction data would be required to verify that
data was not a final report which would have been required to prevail on an underlying
case.
.:/.,
f' E ENE MAIER, SJ.
r .
(2(16/;J/
Date: _
Case ID: 131201818
RR481a
Circulated 05/12/2017 03:48 PM
IN THE COURT OF COMMON PLEAS FOR PHILADELPHIA COUNTY
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
TRIAL DIVISION - CIVIL
301 MARKET STREET, LLC, DECEMBER TERM, 2013
GENERAL PARTNER FOR AND ON
BEHALFOF 301 MARKET STREET N0.1818
PARTNERS, LP ;::. ' r-.3
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JONATHAN WHEELER, ESQ. AND 2658 EDA2016 (,•
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ADDENDUM TO OPINION
Plaintiff has appealed this court's Order docketed July 19, 2016 which denied
Plaintiff's Motion for Post Trial Rellef filed from the decision of the Honorable Eugene
Maler.1
Plaintiff flied this action for legal malpractice against Defendants Jonathan
Wheeler and his law office. The Complaint alleges Defendants failed to timely file a
property damage suit against a pizza shop adjacent to Plaintiff's property. The specific
issue concerned the date upon which the statute of limltatlons tolled. The matter
proceeded to a Non-Jury Trial before Judge Maier where the parties presented
testimony and exhibits. Following trial, Judge Maler entered Findings of Fact and
Conclusions of Law, and entered a verdict In favor of Defendants. Judge Maier's
Findings and Conclusions are attached hereto and incorporated herein.
301 Market Slreel, lie Vs '1,'1ee!er El AJ-OPfLO
I Judge Maier retired as of December 31, 2015
111111111111111
1312018180_0113
Ill Ill RR497a
COPIES SENT PURSUANT TO Pa.R.C.P. 236(b) 10/12/2016
Plaintiff filed for post-trial relief. Defendants responded. As Judge Maier had
since retired from the bench, Plaintiff's Post-Trial Motion was assigned to this court.
After oral argument, this court denied Plaintiff's request for post-trial relief by Order
docketed July 19, 2016. The basis for this court's decision is set forth in the Opinion
that accompanied the Order, a copy of which ls appended hereto. This appeal
followed.
Plaintiff's 1925(b) statement raises five (5) issues on appeal. Initially,
Defendant's fifth Issue on appeal, namely that Judge Maier erred and/or abused his
discretion by barring Plaintiff from fully lltlgating, developing and defending against
Defendants' defense at trlal, was not raised In Plaintiff's Post-Trial Motion. Accordingly,
this Issue is waived. See Pa.R.C.P., Rule 227.!(b), (grounds not specified in post-trial
motions are deemed waived) and Pa.R.A.P., Rule 302(a), (issues not raised In the lower
court are waived and cannot be raised for the first tlme on appeal).
Plaintiff's fourth issue on appeal argues that this court erred and/or abused Its
discretion by speculating on Judge Maier's reasoning regarding the issue of Defendants'
right to rely on Information relative to the date upon which the statute of limitations
began to toll. This Issue on appeal must fail, as the record as a whole is sufficient for
this court to support Judge Maier's findings. It is well established that the credlblllty of
witnesses is an issue to be determined by the trier of fact. See Krankowski v. O'Neil
928 A.2d 284, 287 (Pa.Super.2007). The appellate court will respect a trial court's
findings with regard to the credibility and weight of the evidence unless the appellant
can show that the trial court's determination was manifestly erroneous, arbitrary and
RR498a
·~I••• • 1.-9
capricious or flagrantly contrary to the evidence. Ecksel v. Orleans Const. Co., 360
Pa.Super. 119, 519 A.2d 1021, 1028 (1987). Here, Defendants presented enough
evidence to support Judge Maier's findings. It is clear from the record Judge Maler
made a determination as to credlbility of the witnesses and found Defendants credible.
Findings of Fact and Conclusion of Law ~6. This court will not disturb Judge Maier's
findings.
Plaintiff's remaining issues on appeal also must fail based on this court's Opinion
flied July 19, 2016.
Date: -"'-4'>--/ ~--1-, l,,__k_
RR499a