*1
stоlen
receiving
had been convicted
ter’s statement that he
reasonable for counsel
entirely
it was
property.
believe
that he had been
Poindexter’s own statement
upon
have relied
when,
here,
was
convicted,
that statement
particularly
mother.
confirmed
Poindexter’s
However,
it was reasonable for counsel to
I do not believe
Poindexter,
during cross-examination
object,
fail to
when
yet
Poindexter had not
been
was made aware that
counsel
point,
offense. At that
counsel
underlying
for the
sentenced
basis of our rationale Common-
objected
have
on the
should
thus,
(1974),
Accordingly, for majority. the result reached MONTEMURO, J., concurring opinion. in this joins
v. TUCKER, Berger, Appellees. M. Robert E. and Daniel TRICE, Appellant,
Gregory MOZENTER, Appellee. Robert B. Pennsylvania. Supreme Court of Argued March 1988. Reargued Sept. 1990.
Decided Feb. *4 Rothman, Clarence and Charles appellants H. David for Bailey. Feinman, George for appellant
Andrew and Mark Jackson Trice. Associates, Otszewski, Trushel & for
Deborah D. David H. Berger. E. and Daniel M. appellees Robert Tucker Fox, Rothschild, Tannelli, Albert, Jeffrey Ernest B. O’Brien & Frankel, B. Mozenter. appellee Robert NIX, C.J., LARSEN, FLAHERTY,
Before jj. McDERMOTT, ZAPPALA, CAPPY, PAPADAKOS and OPINION NIX, Chief Justice.1 op- consolidated this Court with an appeals present
These a criminal may to examine whether counsel in case portunity these civilly negligent stewardship. Initially, be sued underlying came before us on the issue of whether the cases be ad- Although actions were time barred. issue will dressed, concern, larger to wit: the it is overshadowed opinion reassigned September to this writer on 1. This *5 242 are plaintiffs of action which these
viability very cause asserting. 1987 Docket Appeal
34 W.D. by jury Bailey, was convicted Appellant, Clarence murder of Marion Carter 14,1970, degree for first the October father, His Charles imprisonment. to life and was sentenced deceased, Es- Daniel M. Berger, had retained Bailey, now Robert proceedings. his son in these criminal defend quire, Tucker, Berger, at an of Mr. that time associate Esquire, E. trial counsel. this verdict, appeal was filed with a direct
Following the for all at that time procedure in accоrdance with Court repre- then Appellant, homicide.2 convictions felonious Defender, argued that Public Allegheny County sented in the discriminatory racially practices used prosecution 11, February order dated By per curiam jury selection. evidentiary hearing for an Court remanded case this repre- then hearing, appellant, Prior to allegation. on this counsel, petition filed a under by privately-retained sented (PCHA).3 In this Hearing Act then extant Post Conviction alia, that trial counsel had inter Bailey alleged, Mr. petition, 2, 1973, hear- evidentiary On November been ineffective. the PCHA on both our remand order and ing was conducted petition. merit- jury argument
The court found the selection lower however, relief less; granted post-conviction the court had been ineffective finding that trial counsel appellant’s motions. The support post-verdict file a failing to brief dismissing post-verdict appellant’s set aside its order court argued that these motions be briefed and motions and directed ultimately banc. That court denied the court en before August motions on the merits on 15, 1870, 1-2, § § February P.L. 15 19 P.S. 1886-87. 2. Act of 15, 1966, (1965) 1580, 554, § P.S. January P.L. N. 3. Act of seq. present § § statute can found 42 Pa.C.S. 1180-1 et seq. et second time on direct came bеfore this Court a The case Pa. 390 A.2d of sentence. 480 judgment appeal (1978). judgment sentence This Court reversed *6 trial, opinion for a issuing plurality case a new remanded the this decision was the its action.4 The basis for support in of for inves- failing was ineffective to determination counsel an intoxication defense. pursue adequately and to tigate 10, held, 1978, appel- A was and on November second trial voluntary manslaughter. At that guilty was found of lant his life appellant years imprisonment had served nine of point, voluntary for manslaughter The maximum sentence sentence. of years. Under the circumstances Court Com- was ten of time served and released imposed mon Pleas sentence appellant. 1980, 22, writ by commenced action appellant
On October
in
of
Berger
the Court
of summons
Tucker
County, alleging
negligence
of
both
Allegheny
Common Pleas
failing
contract
to
the intoxication
pursue
and breach of
for
raising
an answer and new matter
Appellees
defense.
filed
Thereafter,
appellees
the statute of limitations as
defense.
to
summary judgment
filed a motion for
Rule 1035
pursuant
court,
The trial
Pennsylvania
Rules of Civil Procedure.
limitation,
held
applying
year personal injury
a two
statute
granted
that the action was time barred and
motion
summary
was
judgment.
Superior
This order
affirmed
(1986) (memorandum
Court,
617,
Pa.Super.
360
In the appeal, Gregory along second with seven co- defendants, charged drug-related was federal with various in prosecuted offenses and the United States District Court Opinion Announcing Judgment The Court was 4. authored joined by any Justice O’Brien. It was not other member of the Court. Roberts, result; in the then- Justices Nix and Manderino concurred Pomeroy Eagen and Justice Packel did Chief Justice Justice dissented. participate in the Court's decision. retained Pennsylvania. Appellant District of for the Eastern Mozenter, represent him Esquire, Robert B. to services of oral as agreement apparently This proceedings. these has On been advanced. attorney-client agreement no written 25, 1975, aby jury5 was convicted appellant March The years penitentiary. fifteen a federal sentenced serve by the States was affirmed United judgment sentence Third for the Circuit December Appeals Court se, 3, 1978, acting filed with the apрellant pro On November sentence District vacate his petition United States Court § ineffective assistance pursuant 28 U.S.C. because alia, ren- that counsel alleged, inter Appellant counsel. investigate failing adequately dered ineffective assistance (specifically voice exculpatory physical evidence potentially June petition. District Court denied this On exemplar). the Third Appeals the United States Court *7 and it to hold an the District Court ordered Circuit reversed respect to the ineffectiveness claim. evidentiary hearing with Court determined that the District Following hearing, relief rea- was ineffective but nonetheless denied counsel as a result of prejudice had not suffered soning appellant that ineffectiveness. Appeals to this decision the Court Appellant appealed and, District Court and ordered again, that court reversed the following new month given be trial.6 appellant 23, 1983, prison. September from On was released appellant Attorney’s Office elected dismiss the United States him. indictments 9, 1984, complaint against appellant’s was filed August
On
Mozenter) in
counsel
the Court
Common
(appellee
trial
both
County.
alleged
This
Philadelphia
complaint
Pleas
heroin,
unlawfully
conspiracy to
distribute
Appellant
5.
was convicted of
facility (telephone)
§
and
21 U.S.C.
use of
communications
heroin,
843(b).
§
21 U.S.C.
facilitate the unlawful distribution
trial,
exemplar
"the
evi-
ordering
the new
the court found that
In
dence,
investigated ‘might
[favor-
have
to a
defense and a
if
led
viable
attorney so
and
the failure of Trice’s trial
verdict’
...
able]
‘beyond a
”. United States v.
proceed is not harmless
reasonable doubt'
(citations omitted).
(3rd Cir.1982)
Baynes, 687 F.2d
matter, appel-
In
new
of contract.
and breach
negligence
defense.
as an affirmative
the statute of limitations
lee raised
on the
judgment
motion for
filed a
appellee
Subsequently,
Rules
Pennsylvania
Rule 1034 of the
pleadings pursuant
motion
on its
based
granted
The court
Civil Procedure.
appeal
had run. On
statutory period
determination that
of action
affirmed, holding
the cause
Court
Superior
appeal
his
filed
first
appellant
in 1978 at the time
accrued
510, 515
Pa.Super.
alleging
federal court
ineffectiveness.
(1986).
from this Court. We
sought
A.2d
review
Appellant
(1987),
allocatur,
7. See Kaus & The Hand of Counsel—Reflections 1191, (1974) Malpractice.’’ (noting 1192 21 “Criminal U.C.L.A.L.Rev. subject). only eight reported opinions the authors found Albert, Survey Developing Boqutz Jeffrey E. & B. A 8. See Jerome Attorney Temple 1273 Pennsylvania Malpractice, 61 L.Rev. Law of (1988). 246
A.
ACTIONS IN TRESPASS
actions
trespass
have
viewed
traditionally
Our courts
in the same manner
malpractice
criminal defense
alleging
v. Ti
negligence.
claims
See Alberiсi
professional
other
(1988);
nari,
Baya
Ee
1. The of the basis employment skill and ordinary to exercise attorney failure knowledge; and damage cause of proximate
3. That such failure
plaintiff.
(1989).
Haines,
484, 499,
Pa.
A.2d
See
65
Rizzo
Monheit,
396,
In cases arena, analysis appropriate. civil the above sentation However, attempts in situations where a criminal defendant alleged negligent action with respect state cause of criminal there are substantial representation proceeding, cause of differences which warrant distinct treatment of this action. analysis of the factors and consid- begins
Our review with abso- appellees adopting as reasons erations advanced lawyers. The reasons immunity lute defense 1) of a action for representa- include: the threat have a effect” on “chilling tion of criminal dеfendant will ability fearlessly indepen- counsel’s to defend his client 2) will dently; consequence system difficulty as a have represent attracting maintaining attorneys persons crime, of an will with retention charged 3) al- prohibitively expensive; aggrieved defendants become
247 ineffec- systemic remedies ready have sufficient 4) post-conviction proceedings; appeals such as tiveness flood of will result a a of action such cause permit to 5) leads such a cause of action existence of litigation; actually profiting “in fact” guilty party possibility to directed attorney’s negligence was where the from his crime the criminal defense. aspect to a non-factual it policy arguments advanced these Although have appellees any persuasive have not offered they be noted that should for the creation of request their legal authority support no research has uncovered immunity, independent and our law country which has offered jurisdiction this That is not judicially protection.9 created practitioners such however, ad- policy considerations that some say, substantial, or cause us are not do not by appellees vanced concern. great in the inverse order will address these concerns
We First, possibility as for the of defen presentation. of their crime, as an require from his we actually profiting dant a defense trespass against cause of action element cause proximate dereliction the sole attorney whose conviction, prove must defendant’s unlawful defendant If a offense. any is of the crime or lesser included he innocent crime, of a and that is indeed guilty person is found person crime, it established that any degree is innocent counsel’s wrongful proximately conviction was caused defendant, only represent his duty dereliction in gross damages. monetary defendant be able to collect then will the inadequacy a crime because of the If a is convicted of person justice grant is representation, counsel’s satisfied However, wrongfully person if an innocent trial. new dereliction, attorney’s justice requires due to the convicted occurred. compensated wrong for the which has that he precedents English for criminal note that there are common law 9. We Glover, 914, 921, 104 attorney immunity. See 467 U.S. S.Ct. Tower (1984) (citing Worsley, App.Cas. Rondel v. 81 L.Ed.2d (1969) (Eng.)). act for first underlying degree murder and for voluntary manslaughter taking is the unlawful of human life. *10 A convicted of a human person unlawfully taking may life monetary damages being wrongfully collect for convicted of degree person first murder when in fact that of a guilty degree lesser of homicide. He to a if will be entitled new trial he ineffective proves lawyer’s assistance was the his degree cause of conviction of first murder. That is the However, relief. of criminal appropriate purpose and civil truth, if trials is to discover the the truth is that defendant committed unlawful acts which constitute the crime or charged, damages crimes he will not be able to collect discovery of the truth. this a Allowing possibility guilty plaintiff collecting damages public would violate the policy Therefore, prove, by preponder this state. defendant must evidence, ance of the that he did not commit any unlawful acts charged any with which he was as well as lesser offenses included therein. also
Appellees argue aggrieved convicted defendants have sufficient already through appellate process recourse that, post-conviction filings, unlike their civil counter- they can raise the parts, ineffectiveness their trial or counsel as appellate grounds substantive reversal. These opportunities designed additional for relief are to insure that a in a criminal defendant matter is accorded his constitutional such, to effective counsel.10 As right they speak to the between the relationship defendant and the Commonwealth rather than between the defendant and his counsel. We no reason to perceive countenance the use of these constitu- safeguards liability tional as a shield defense counsel. Moreover, if safeguards even these are viewed as a form of ineffectiveness, deus ex machina to rectify the ramifications of do not address they suffering spent the time and under the Thus, of an burden unwarranted conviction. these although safeguards may viability be related to the of a criminal Strickland, Worthington, 10. See 466 U.S. 104 S.Ct. (1984) (Sixth right L.Ed.2d 674 Amendment to counsel includes the counsel). right to effective eliminate action,11 provide do not reasons to they malpractice an action. such so resolved. arguments easily are not other
Appellees’ looms over the that if the threat They contend be a the result will criminal defendant representation inde- willingness to exercise cоunsels’ diminution defense mindset replaced by defensive legal judgment, pendent toward and less avoiding malpractice, geared more toward believes, who example, For obtaining acquittals. suggested experience, that witness on his professional based might nonethe- good harm than will do more by the defendant that witness desire to have to the defendant’s less accede him; legal to exclude judgment his testify rather than exercise unwise to that it would be may believe or defense counsel possibility because of the witness but a certain cross-examine *11 erroneous, decision was claim that this may someone later that may elect preparedness, of a lack or indicative judgment. rest on his rather than to cross-examine contended, that in such instances we agree, It defendant, as a the system respective interests willingness whole, Additionally, ill-served. be would certainly bargains will almost plea to utilize attorneys defense small, that any possibility however there exists diminish where case; may have made its this could not the Commonwealth bargains in occur, plea most cases the fact despite system at and the a for both the defendant benefit represent system it in overburdened already our Additionally, large. or expenditure no the additional encourage behooves one to mal- against potential a record merely to build resources claim. practice concerns, the follow- raise appellees to the above
In addition availability of actions defendants arguments: ing powerful disincentive attorneys provide will their former field; prolifer- in to continue in the field practitioners premiums increase insurance certainly will ation of such suits be ultimately will and such costs practitioners; for such regarding the exhaustion ineffectiveness 11. See our discussion infra malpractice action. prior proceeding with criminal remedies passed system to the at large, because there will be fewer attorneys represent greater clients, number and the cost of such retaining attorneys will inevitably rise. and,
The above concerns are significant we although do not agree they are of such magnitude that all causes of action barred, should agree we with appellees that the reasons advanced of an support immunity are substantial and important to the entire system charged with the administration of criminal law.
Furthermore, emphasize we must the unique position vis a vis a civil which a client accused of a occupies crime area, client. Unlike the civil litigation a client does not come before justice system the criminal under the care of his alone; counsel he comes with a full panoply of rights, powers, and privileges. rights These and privileges only protect the client system from abuses of the designed but are protect the client Thus, from a deficient representative. forever, whereas a civil matter a case once lost is lost in a criminal matter a defendant is entitled to a second chance chance) even a (perhaps third or fourth to insure that an injustice has not been committed. For these reasons we are recognize constrained to that criminal malpractice trespass actions are distinct from civil legal malpractice trespass ac tions, and as a result the elements to sustain such a cause of action must likewise differ.
Consequently, today we hold that a plaintiff seeking to a bring trespass action against a criminal attorney, defense resulting from his or her representation of the in plaintiff criminal proceedings, must establish the following elements:
(1) employment attorney; the (2) Reckless or wanton disregard of the defendant’s interest on part the attorney; the (3) the attorney’s culpable conduct proximate was the cause of an injury i.e., suffered the defendant/plaintiff, “but conduct, for” the attorney’s the defendant/plaintiff would of the complete a dismissal or aquittal have obtained an charges.12 defendant/plaintiff
(4) criminal the the injury, As a result of damages. suffered in
(5) Moreover, prevail not an action will plaintiff a pursued post- until he has unless and malpractice criminal dependent which was and obtained relief trial remedies finding error;13 additionally, although such attorney upon action it subsequent in the may introduced into evidence be of culpable the establishment dispositive shall malpractice action.14 conduct the
B. IN ASSUMPSIT ACTIONS type the second turn our attention to nowWe claim based on breach assumpsit an malpractice issue: claim and This is a contract agreement. claim attorney-client on terms of regard will be based attorney’s liability this Thus, his or agrees provide if to attorney an that contract. Of to do so an action will accrue. and fails her best efforts fee a client is represent a to attorney agrees who course prove by preponderance of the evi- defendant/plaintiff must 12. The any with which he unlawful acts that he did not commit dence Resolving therein. this charged any as offenses included as well lesser However, greatest question perhaps consternation. will cause system permit is only integrity of the to way protect one impacts on the defen- attorney to introduce whatever evidence compensation. dant/plaintiff’s Such evidence can in- entitlement communications, any as well as otherwise and all confidential clude guilt. suppressible evidence factual not, however, plaintiff duty of his requirement relieve the 13. This does period of limitations of action within the statute to initiate this cause discussed, procedural question, to wit: but it does raise hereinafter prior completion with a action filed what is to be done civil process? that an defendant who post-conviction The answer is complaint alleging professional for the is served with a interpose preliminary objection may handling of criminal matter 1017(b)(4). grounds No. The trial of demurrer. See Pa.R.C.P. objection until the ruling its on said resolution court shall then reserve proceedings. post-conviction finding of regard emphasize In that a ineffectiveness this we wish finding culpable conduct. not tantamount to a *13 252
by implication agreeing provide professional that client with services consistent with those expected profession at large.
Thus, this cause of action proceeds along the lines require of all established contract claims. It does not appellate determination court of ineffective assistance of counsel, prove nor does client need to innocence. Howev er, in anticipation potential problems necessary it is comment on the aspect damages recoverable such an action; such quite simply, damages will be limited to the actually paid amount for the services interest. plus statutory Our reasons for this limitation are the imposing same as those above; discussed to allow consequential damages such engender problems situation will the same as those we sought to limit above.
II STATUTE OF LIMITATIONS limitations, regard respective With to the statutes of the rule this Commonwealth is that the statutory period or, commences at the time the harm is suffered if appropriate, alleged malpractice at the time the is discovered.15 In the Produce, Inc., 80, 84, Raceway Pocono Pocono Int’l 503 Pa. 468 ("As rule, (1983) general party asserting A.2d 471 a matter of duty diligence cause of action is under a to use all reasonable to be properly upon poten- informed of the facts and circumstances which a based, recovery right proscribed tial and to institute suit within the statutory period.”). recognize We the concern about the amount of might might clog claims that result and that the civil dockets. Howev- er, important require we feel that it is more that we these criminal statutory period prevent any defendants to file their claims within the injustice malpractice many to an who has to defend a claim of years relationship after his with the client ends. Insurance Co. N. Carnahan, 48, 51, ("The (1971) Am. v. 446 Pa. 284 A.2d purpose any expedite litigation statute of limitations is to and thus discourage delay presentation may greatly and the of stale claims which claims.”); prejudice Naugle, the defense of such Schmucker v. 426 Pa. 203, 205, (1967) ("Statutes 231 A.2d of limitation are vital to law.”); society the welfare of and are favored in the Ulakovic v. Co., 571, 575, (“If (1940) Metropolitan Ins. 339 Pa. 16 A.2d Life enforced, any person right has a which he wishes he should enforce it when the action, time of a context *14 identifiable, case, easily will, in be typical is suffered harm However, sanctions since criminal i.e., sentencing. the date of ac- criminal defendant’s to the nature directed are their the legal to be tions, presumed actions are thus those and suffered, defendant becomes the date a of the harm cause for the responsible been may his have counsel aware Nonetheless, is it to likely pinpoint. will be harder harm from which the statute point to establish necessary starting The appropriate will commence. period limitations relationship, attorney-client of the point is the termination of the is defendant aware point aggrieved at since conviction), investigate (i.e., and is on clear notice to injury to exist.16 harm he believes of that which any alternate cause patient is the medical defendant not unlike regard In this is on notice injury placed of an then aware who becomes cases. now resolve instant its cause. We to discover A. APPEAL DOCKET
34 W.D.
on
Bailey,
April
Clarence
respect
appellant
With
murder,
1970,
allegedly degree
of first
he was convicted
counsel,
E.
trial
Rоbert
malpractice
his
a result of
life
on
Tucker,
prison
was
Appellant
sentenced
Esquire.
by new
July
represented
On
1970.
October
counsel,
filed a
under the Post-Conviction
appellant
petition
alia,
that he had been denied
Hearing
alleging,
Act
inter
Therefore,
statute of
of counsel.
effective assistance
19, 1973,
July
run no later than
since
began
limitations
clearly
appellee’s alleged
on notice of
appellant
date
was commenced
malpractice
The instant
action
dereliction.
right
might
person against
to be enforced
whom the
is
promptly.
by plaintiff's delay.”).
greatly prejudiced
represents
encompass
where the
This will
situations
same
throughout
appellate process.
See
the defendant
trial
(Tex.1991).
Hughes Mahaney
Higgins,
Accordingly, Superior the order of the hereby the trial court summary judgment by grant affirmed.
B. APPEAL E.D. DOCKET Trice, 25,1975, on March he respect appellant With offenses, allegedly as a was convicted of the above-described counsel, Robert B. Mozen of his trial result 3, 1978, ter, appellant pro filed a se Esquire. On November *15 Accordingly, at least as of to vаcate his sentence. petition terminated, date, Mozenter’s services been appellee had relating any trespass of limitations action and the statute mal Appellant to run. filed the instant criminal begun had 9, 1984, year the two August beyond action on practice well only to the actions. The period applicable trespass limitations of limitations under which could sustain his period appellant year would be the six statute with assumpsit cause of action § to written contracts. Pa.C.S. 5504. Howev respect See er, that a written contract existed appellant alleged has Therefore, longest possible and the appellee. between himself period would the four for an oral period year of limitations be § instant action was filed contract. See Pa.C.S. 5525. The four beyond year period. such Superior affirming the order of the Court the Accordingly, appellee’s judgment trial court’s motion for on the granting affirmed. pleadings hereby is McDERMOTT, J., did not in the decision of this participate case. appropriate are as In an action
17. The statutes of limitations follows: trespass plaintiff years complaint. in the has two in which to file his assumpsit § In an actiоn in for an oral contract Pa.C.S. 5524. period years. § applicable limitation is four 42 Pa.C.S. 5525. For a contract, period years. § written the limitation is six 42 Pa.C.S. PAPADAKOS, JJ., concurring opinions. file ZAPPALA J., dissenting opinion. LARSEN, concurring files Justice, ZAPPALA, concurring. affirming the orders judgment in the Court’s concur I also time below, actions barred. which held these
courts such as these for actions period limitations agree the client represent attorney ceases to run when the begins is to have alleged in which in matter majority has offered However, I do not believe occurred. ac- for these different elements adopting reasons for sound cases. applicable negligence/malpractice other tions than are higher degree fashion a troubling the decision to Especially of culpability. cases, of these the sole granted first review the Court
When parties here and disputed question presented periods began the limitations below was when courts timely and, had been whether the actions accordingly, run complaints that the proposition filed. No one advanced the upon which relief could causes of action failed to state elements of the actions anyone argue nor did that the granted, any com- other than standard elements anything were Furthermore, asserting when negligence. plaint trespass sponte, we asked reargument ordered sua this Court single immunity whether question, to address a parties *16 be setting adopted in a criminal should attorney malpractice Nothing question this law this Commonwealth. of against action malpractice that the possibility hints of the with different be refashioned might criminal defense Opinion goes the Majority To the extent elements. it from the usual presented, suffers beyond questions the additional defect and from failings advisory opinion of an of To the counsel. being presentations informed not created a context by the Court question posed that the extent as a approach this it to advance possible became which to the order regret having acceded ground,” “middle reargument. creating majority, stated on the issue
As make a attorneys, Appellees defense immunity for criminal recognizing in favor of public policy arguments number of said, actions, encourage it is an unde- immunity. Malpractice not juries Civil should duplicity legal proceedings. sirable of a criminal as to how the outcome permitted speculаte be attorney’s different but for the defense might trial have been civil potential Moreover the representation. negligent to the liability may chilling attorneys, perhaps have a effect on counsel. right on the constitutional impinging extent of Some, engaging from argued, discouraged it is will be defendants, fear of of criminal either from representation insurance at liability inability or from obtain affected in the exercise of might affordable rates. Others be discretion, strategy by weighing professional choosing their impact the possible the client’s best interests but also only not availability of attorney’s liability. own The potential on the proceedings disciplinary review of criminal post-conviction are to be suffi- attorneys argued actions errant also correctives. cient that it would be Appellants respond inappropriate
The
law.
immunity
recognized
a new
not
common
adopt
type
trend,
noted, has
to restrict common law
it is
been
immunities,
Ayala
Philadelphia
not
them.
Board
expánd
(1973).
Education,
It is
453 Pa.
257 (1985) (court Johnson, Pa. A.2d 1320 monwealth prosecution, from grant immunity to power has no inherent statute). also note that by Appellants The which is controlled attorneys of criminal defense or has been no dearth there nor liability, of fear of civil is there defenders because public justify changing such as would the litigation with problem Further, any it argued of the difficulties status law. remedies by overlap post-conviction malprac- posed through evidentiary procedur- tice actions can be resolved of suit rulings, preclusion altogether. al of the drastic instead arguments put that none of the majority The concludes the creation of an immuni- by appellees supports forward ty, policy but determines that some these considerations weigh recognizing Specific favor of different standards. “if argument citation is to the the threat of mal- made practice representation looms over the of a criminal defendant the result will be a diminution of counsels’ to willingness replaced be independent legal judgment, exercise more geared avoiding malpractice, defensive mindset toward obtaining acquittals.” Opinion and less toward at 114. also to the claim majority points A.2d at that “the their former availability actions defendants practitioners attorneys powerful will disincentive provide field; in the field to in that of such proliferation continue certainly premiums suits will increase insurance for such ultimately passed costs will on to practitioners; and such at be fewer system large attorneys because there will clients, greater number of and the cost retain- represent 249-50, ing attorneys inevitably Opinion such will rise.” at setting policy 621 A.2d at After out these arguments, 114. important which are as “substantial and to the identified with system charged entire the administration of criminal law,” majority quantum leap makes conclusion of culpability, that a different standard “reckless or wanton disregard part defendant’s interests on attorney,” applicable. should be doctors, accountants, etc.) See (e.g.
defendants as well. infra at 266- 68, 621 A.2d *18 arguments litigation, The same about increased nuisance rates, etc., be, suits, can indeed have malpractice insurance any every profession. máde other Likewise been about and arguments chilling actions have effect on with the that such for the practitioners. reported, example, It has been increas- potential malpractice litigation, accompanying costs, in of led specialties es in some the medical has insurance limit severely practice, or their give up some doctors to many doctors leading shortages specialists, and that medicine,” ordering procedures tests and practice “defensive necessary them but to avoid later they not because believe thereby malpractice, greatly increasing mеdical charges costs. a lawyer’s
To declare for such as these that conduct reasons greater against degree culpability should be examined case, any the Court must applied negligence than that other unseemly the and unsubstantiated implicitly finding make is attorney’s function in a criminal trial somehow more protection, more in need of than the work other important, roundly justly professionals. This decision will be con- example system “protecting demned as an of the its legal because, all, own,” the lawyers and with after it is impunity rules game. who make and enforce the of the makes the additional that a crimi- majority observation civil occupy positions nal defendant and a client different vis-a- by “systemic the former attorneys, being protected vis their privileges” system abuses of the and deficient rights from point is that Presumably, since crimi- representation. nal available to redress the harm other defendant has means attorney, than to an action his there is less resorting validity of this Again, need for such actions. whatever it not the conclusion that a different point, support does more It does no than culpability appropriate. standard injuries, separate point up the fact that unlike other harms all legal malpractice remedies involved with are justice system. claiming One physical within realm harm as a of medical must seek further result haim; help physical to correct the to vindicate his medical harm the first been inflicted with the right to have A legal person in the forum. he seek redress place, must claiming attorney misfeasance caused his incarceration by pursuing legal to correct the harm itself attempt will sentence; may separately he challenges judgment to the subject his never to been attempt right to vindicate have by proceeding against at all who imprisonment That for the harms are caused the harm. the correctives both arena, however, judicial within the does not alter nature which the the claims. Nor should it alter standards judged. claims are necessary prove a cause action
As the elements *19 conducting an criminal against attorney defense, I the approve analysis developed Supe- would the are Court, attorney malpractice rior under which claims treat- claims professional negli- in the same manner as other ed general the elements of a claim of gence, and bear traditional causation, breach, damages. and would negligence duty,— hold that a must show plaintiff
1) or attorney duty; The the other basis employment 2) ordinary attorney The of the to exercise skill and failure and knowledge;
3) cause of negligence proximate damage That such plaintiff. to the Monheit, (1979). 396, A.2d 493
Sehenkel v.
Pa.Super.
require
in most
will
proof
damages
of actual
cases
that
or she would have been
he
successful
plaintiff
establish
not been
underlying
negligent.
in the
action had
however,
majority’s argument
This is a
from the
that
cry,
far
“must
he is
of the crime or
plaintiff
prove
that
innocent
at
Trice also that the these, discovery like as the to actions and that insofar cable fact, in his judgment pleadings an issue on the rule raises The common formulation of inappropriate. case was for discovery period commencing rule is that the limitation despite reasonable person, action will be tolled where a his diligence, be unable know of exercise of due would question or cause. Trice contends that injury its jury, is for diligence has exercised due person whether a was unreason- that “a could well decide jury [he] negligence that counsel’s discovering able fact in- only appellate ‘harmed’ him when an court breach had him same.” Brief at 17. formed argu- I must of harm on which these reject conception In premised. ordinary course of implicitly ments are affairs, being subjected it to a term of would seem that can injury person. is a harm or an to the Nor imprisonment harm readily doubt the fact of this is any there position its upon аppellants’ ascertainable occurrence. The “legal” injury injury recognized that this should not be wrongful judicial proceeding, it in a until has been declared of the appeal either on direct or collateral review conviction unique among would make such claims approach itself. This negligence; setting in no does the law the varieties of other separate wrongfulness qualify on a determination depend contrary, very harm as On the it is the function actionable. injury wrongfully of the lawsuit determine whether the no such a perceive justification caused. I distinction. 266-68, page As infra at A.2d believe discussed injuries, out fact unlike other the confusion arises of the legal separate and dis- malpractice, though the remedies claim, tinct, legal system. are within the A all realm *21 direct or in collateral that appeal proceedings, whether on by the it process conviction should be set aside because which performance deficient was obtained was flawed counsel’s relief as a com- fundamentally grounds asserts the same for harm seeking damages for caused attor- plaint money sime, form relief ney’s To be of differs negligence. capаcities proceedings. of the according legal different case, however, is In each the basic claim the same. Acknowl- in the context of edging proper that the verdict is arguendo conducted, argues were each that the proceedings they have different had the proceedings and the result would been The harm appropriate representation. rendered judgment is the same —the sentence. each case defendant’s attorney’s in each case is the same —the misfea- cause harm more certain sance. The does become fact Rather, determination judicial with ineffective assistance. established, proceed- of that purposes the cause is least Likewise, no upon of the harm is more certain ing. fact trial, of a the amount or only the favorable outcome later the harm degree of is. context, may say judgment
In we a valid present of a strong person’s sentence is evidence that the “cause” judgment, is his conduct. That howev- incarceration er, all challenge. judg- is not insulated from Even after the appeal, open ment has been affirmed on direct it remains claim incarceration is а person “cause” his process through judgment fault which the reached. Kirschmann, 189, 203, 168 Pa. 32 A. Compare, Grohmann (1895) (in arrest, guilty strong action for false verdict cause, probable may but be prima facie evidence rebutted means.) undue by proof by corrupt it was obtained or may find no respect brought, With when such actions in the integrity difference effect on the meaningful or judgment corpus post-conviction between habeas other money damages. and a civil action for challenges possibility It is to envision the conflict- perhaps troubling if issues ing put assessments the evidence such similar are It to different factfinders for resolution. would indeed not be *22 find assis- a ineffective readily were court understandable Reese v. See negligence. civil find no jury tance and a n. A.2d n. 10 Pa. Danforth, 486 479 at (1979) (O’Brien, J., more would dissenting). perplexing Even a awarding finding on jury damages the a civil possibility be no assis- finding while ineffective a court was negligence mistake, a affirming judgment of sentence. It is tance the however, spec- to avoid these special categories to construct minimize tres, system already equipped the which never materialize.3 might which on a period I hold that the limitation Accordingly, would attоrney against action defense legal malpractice terminating the entry run on order begins to the date his servic- attorney in has rendered proceedings the which the hold, however, running of the I also that the es. would the has contin- attorney will be tolled where period limitation on direct proceedings defendant represent ued to the such very representation inasmuch its nature appeal, client, asserts, on of and to the that the cause both behalf error, attorney’s not the legal the unfortunate result was (or rationale, I assistance. Based on this negligent) ineffective review of the and determina- agree majority’s with the record time tion the actions were barred.4 that principles estoppel, of collateral It would seem that traditional instance, had negligence bar where a court ruled would an assertion proceeding attorney's conduct was appeal or in a collateral that prejudicial. or A of ineffective not unreasonable determination however, assistance, binding not be in a civil action would attorney party attorney, proceeding was not a to the where since Indeed, ruling might it well be that evidence of а was made. found action, finding would be in a civil on the of ineffectiveness inadmissible probative grounds value of such a determination would might prejudice, jury readily in that outweighed the likelihood of judicial give weight previous "defer” or undue to the determination though proceeding it had in a where the even been made party. not an adversarial period agree majority when I with the as to the limitation 4. Because run, began disagree I with Justice Larsen’s assertion that neither separate- appeal, In action was time barred. this Trice has not contract aspects Superior ly argued his Court the tort and contract claim. (oral 5525(3), (4) § applied year period four of 42 contract Pa.C.S. law) implied claim there was no or to the contract because contract Justice, PAPADAKOS, concurring. separately write to ex- join majority opinion
I but any preferred have the commencement press would in these cases to be at applicable statute of limitations innocence is established in the criminal time defendant’s of action setting since the defendant has no enforceable cause it courts to until such time. I believe will overburden our two, or six filed within four malрractice complaints force to be attorney-client relationship. after dissolution years years in the court complaints languish backlog Such will in innocence. proceedings until all criminal have culminated *23 have an earlier commencement My colleagues opted for mischief, if any, and will tell what will be visited date time filing by of by premature complaints our courts upon and the of law- every following sentencing change defendant of motions and post-trial appeals. for the yers prosecution LARSEN, Justice, and concurring dissenting. concur, in
I in the reached part, appeal in result Al- No. 34 1987. Bailey Appeal Clarence at W.D. Docket I that the of action accrued at the time though disagree cause writing, although instrument in Trice claims Mozenter conceded signed, might implicate the agreement that a retainer had been which 5527(2), (6). § year period my Because view the six of 42 Pa.C.S. in timely regardless period applies, which I action was commenced not explore practice pleading the differences in that would do not would, however, recovery. theories of I note our attend different imposed prior holdings period that the limitatiоn is on the cause action, action, year limitation not on the form of and that two period personal injuries expedient of cannot be avoided Buhl, See, e.g., Boggs pleading in v. & 355 Pa. 49 contract. Jones also, (1946); Murray University Pennsylvania Hospi- A.2d 379 see v. tal, (1985) (nature sought Pa.Super. damages A.2d 490 839 applies). controls which statute limitation although Bailey I would that averred the existence also note Charles year argument period four of 42 agreement, of an oral that the 5525(3) might apply Bailey's § not raised Pa.C.S. Charles action was appeal. Superior specifically and was raised in this in Moreover, Court acknowledges although Appellants the Brief that for the deceased, Bailey appears to have no substitu- Charles is now there been parties thus pursuant tion of to Pa.R.A.P. we do not have claim, any party could contract even if it before us who advance the had not been waived. I attorney-client relationship, agree of the of the termination negligence his action appellant Bailey’s allegations Daniel M. malpractice against Robert E. Tucker and legal of limitations two-year are time barred statute Berger however, dissent, I from the actions. applicable negligence from majority Bailey precluded litigating finding I complaint sounding of his contract. also dissent part at 42 majority’s disposition Gregory appeal Trice’s I for legal Docket find that his action Appeal E.D. barred by Robert B. Mozenter is not time malpractice against applicable either statute of limitations. analysis
In
with the
my disagreement
majority’s
addition
issue, I disagree
majori-
of limitations
with the
of the statute
disregard
of a “reckless or wanton
of the defendant’s
ty’s use
of a criminal
assessing
negligence
interest” standard
248-50,
malpractice
Maj. op.
in a
action.
defense
I
address these issues
621 A.2d at
will
seriatim.
of a
regard
legal
With
to the accrual
cause of action for
attorney,
a criminal defense
believe that
such a cause of action accrues and the statute of limitations
to run when a court’s order
the client’s
begins
affirming
v.
contention of ineffectiveness becomes final.1 See Downton
(N.D.Ohio
Vandemark,
1983); Triplett
F.Supp.
*24
(N.D.Iowa 1977);
478
872
and Moeller v.
Azordegan,
F.Supp.
State,
(S.D.1991);
474
v.
N.W.2d 728
see also Johnson
Schmidt,
(Mo.App.1986) (malpractice
This
appellant
Court’s decision
Bailey
trial on the
case,
granted
a new
nal
which decision
ineffectiveness,
July
was entered
basis
trial counsel’s
Bailey,
480 Pa.
267 Third entered its for the Circuit Appeals Court Trice a trial on the basis new granting appellant decision 11, 1982. United August on counsel’s ineffectiveness trial Cir.1982). (3d his 659 Trice filed 687 F.2d Baynes, States v. 9, 1984. Because August legal malpractice complaint date of the years within two of the filed his civil action Trice I hold that his civil Appeals, of the would decision Court the case to entirety in its and would remand timely action is County for further Philadelphia Pleas of the Court of Common proceedings. majority has standard of care the respect
With legal of a cause action established as element i.e., attorney, criminal defense “reckless malpractice against a interest,” maj. op. at disregard or wanton of the defendant’s 115, high is so 621 A.2d at dissent. This standard meet standard gross negligence majority’s even does not care, effect, there no practical purposes, for all duty cause of action. I believe that the owed a criminal as that duty defense to his or her client is the same i.e., attorney, reasonable and litigation owed civil course, this stan- ordinary diligence. always, care and Of to the context case involved. applied dard is and related of the from usually very The context of a criminal trial is different more emotional usually that of a civil trial. Criminal trials are case, because of the heavily charged and more facts possibility criminal behavior involved and the of con- alleged viction. ordinary
In
the reasonable and
care and dili
advocating
standard, I
agreement
majority
am in
with the
of other
gence
v.
which have considered the issue. See McCord
jurisdictions
(ineffectiveness
(D.C.Cir.1980)
Additionally, is Stein, majority treading now and the Gertrude paraphrase treating similarly in dimension upon rights of constitutional I differently Accordingly, under the law. litigants situated establishing in gravely errs majority believe interest” disregard of the defendant’s or wanton “reckless only to criminal defendants. applies standard which McKenna, Strassburger, Muhammad in As stated Shilobod, Gutnick, Messer, 526 Pa. 587 A.2d (1991) (Larsen, J., today is 1346,1352 majority dissenting), negli- “If a is HOLIDAY.” doctor declaring a “LAWYER’S life, priest If a is pays. a human the doctor gent saving human, But priest pays. of a saving spirit negligent ... advising his client client lawyer negligent if is Id. special at. 1352-53. Another 587 A.2d pays.” attorneys herein. While their being is accorded to preference to negligent representation, serve time due clients hide standard that attorneys will be able to behind defense virtually impossible is meet. crime, plaintiff-client guilty if the agree
I do attorney as cause of action there would not any damages. not be there would