The instant case is a many-layered one involving allegations of breach of
On June 8, 1981, plaintiff husband was injured in a one-car accident allegedly caused by PennDOT’s failure to maintain the road in question resulting in water accumulating which caused plaintiff’s car to hydroplane.
In late 1981 or early 1982, plaintiffs hired defendant Michael Dunlavey to sue the Commonwealth for its negligence.
On April 5,1995, plaintiffs hired defendant Bloom to sue defendant Dunlavey for malpractice.
No action against any of the Dunlavey defendants was ever filed by defendant Bloom. Instead, plaintiffs’ third set of attorneys filed the instant lawsuit against the Dunlavey defendants and against defendant Bloom and his law firms, Rosenberg, Kirschner, PA. and Margolis Edelstein. The Bloom defendants have not filed a motion for summary judgment. The motion for summary judgment of the Dunlavey defendants is directed at the two counts against them: Count I for breach of contract, and Count II for fraud.
Dealing with Count II first, the two-year statute oflimitation applies. The question would be when the statute began to run. The allegations of Mr. Dunlavey’s fraudu
Unfortunately for plaintiffs, they did not take advantage of the extended time period, a fact they appear to concede by not having included a count for professional negligence in the instant complaint. However, the attempt to avoid the two-year statute of limitations by filing the breach of contract claim at Count I is of no avail. It is well-settled that a breach of contract claim will not lie
Here, plaintiffs try to bolster their contract action by saying that they specifically instructed Mr. Dunlavey to “either settle the case or prepare it for trial.” His failure to do either is the alleged breach of contract. However, that is not the kind of specific instruction that creates a contract claim. The professional relationship between plaintiffs and Mr. Dunlavey is what created the duty to either settle the case or prepare it for trial. There is nothing in this case to distinguish it from the myriad of cases that say the breach of this kind of duty gives rise to a negligence action only.
The motion of the Dunlavey defendants for summary judgment must be granted as to plaintiffs’ claims only without prejudice to the right of the Bloom defendants to pursue their cross-claims for indemnification or contribution.
ORDER
And now, to-wit, February 8, 2000, it is hereby ordered that the Dunlavey defendants’ motion for summary judgment is granted, without prejudice to the right of the remaining defendants to pursue their cross-claims for indemnification or contribution.
. The other “Dunlavey” defendants would be vicariously liable for his conduct. If the claim against Mr. Dunlavey fails, plaintiffs’ claims against them would also be dismissed from the case.
. Judge Wettick has already ruled that the latest date for the commencement of the limitations period for any of the causes of action [against the Dunlavey defendants] is April 5, 1995.
