Before the court is the joint motion for summary judgment filed by plaintiff Schnader Harrison Segal & Lewis LLP and third-party defendant Albert Momjian against defendant Maury
BACKGROUND
This dispute arises from a divorce action, in which plaintiff Schnader Harrison Segal & Lewis LLP (Schnader), represented defendant Maury Popowich from approximately October 1999 to July 2002 during his divorce proceedings. In or about October or November 1999, Popowich’s wife at that time, Deena Gerson, allegedly used Popowich’s credit card to pay $10,000 for her counsel fees and costs in her divorce action. See Popowich’s counterclaim, ¶17. In addition, on or about February 28, 2001, Popowich paid $50,000 to Gerson’s attorneys pursuant to a written agreement between himself and Gerson. See Popowich’s counterclaim, ¶18. Popowich alleges that he contemporaneously advised his attorney, third-party defendant Albert Momjian, that his agreement to pay $60,000 for Gerson’s benefit was contingent upon Momjian’s assurance that Popowich would maintain the right to seek recapture of the payment in the equitable distribution or settlement of the divorce action. See Popowich’s counterclaim, ¶19.
On March 6, 2002, Popowich and Gerson agreed to a comprehensive settlement before a master to end the divorce action (the settlement). See Popowich’s counterclaim, ¶20. The settlement was not in writing, but rather was read orally on the record by Momjian and Gerson’s attorney. See Popowich’s counterclaim, ¶21. Popowich alleges that, while the settlement was being recited on the record, he interrupted Momjian to verify that Popowich expected Momjian to confirm that each party
Later, when Popowich was transferring his assets to Gerson pursuant to the settlement, he allegedly asked Momjian whether he should offset his transfer by $60,000, to which Momjian responded that he should not. See Popowich’s counterclaim, ¶25. On December 9, 2003, Popowich wrote a letter to Gerson demanding the reimbursement of the $60,000, but Gerson refused to return the $60,000 to Popowich. See Popowich’s counterclaim, ¶¶27, 28. Thereafter, on February 20, 2004, Popowich filed a petition to enforce equitable distribution settlement, enforce arbitration award, and for reimbursement of attorneys’ fees and costs (the petition) in the Court of Common Pleas of Montgomery County, seeking from Gerson reimbursement of the $60,000 pur
In the meantime, in July 2004, Schnader brought the present suit against Popowich for collection of unpaid legal fees of over $63,000 arising from its representation of Popowich in the divorce action. See Schnader’s complaint. On October 21, 2004, Popowich filed a counterclaim against Schnader for breach of contract alleging that Momjian breached the oral agreement between himself and Popowich regarding the recapture of the $60,000. See Popowich’s counterclaim, ¶24. Popowich’s counterclaim also alleges that Schnader violated the fiduciary duty that Schnader owed to Popowich inherent in its agreement to provide Popowich with competent legal services. See Popowich’s counterclaim, ¶35.
Schnader and Momjian (collectively, movants) now move for summary judgment on Popowich’s counterclaim and third-party complaint, respectively.
SUMMARY JUDGMENT STANDARD
Pursuant to Pennsylvania Rule of Civil Procedure 1035.2, a party may move for summary judgment in whole or in part as a matter of law:
“(1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or
“(2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.” Pa.R.C.P. 1035.2.
DISCUSSION
Movants seek summary judgment on two grounds. First, they contend that Popowich’s claims are barred by the statute of limitations. Second, they contend Popowich’s claims arising from dissatisfaction with the settlement are barred by the doctrines set forth in the relevant case law. The court will address each in turn.
I. Statute of Limitations
Movants argue that the statute of limitations should run from the date that the settlement was recited on the record, March 6,2002, on the basis that Popowich knew at that time that the settlement did not include a specific reference to the recapture of the $60,000. See movants’ brief in support of its motion for summary judgment at p. 4. Therefore, they contend that Popowich has acted too late in asserting his counterclaim and third-party com
The question of whether the statute of limitations has run on a claim is ordinarily a question of law for the trial judge; however, where the issue involves a factual determination, the question is for the finder of fact. Fiorentino v. Rapoport, 693 A.2d 208, 219 (Pa. Super. 1997), citing Hayward v. Medical Center of Beaver County, 530 Pa. 320, 325, 608 A.2d 1040, 1043 (1992). “Specifically, the point at which the complaining party should reasonably be aware that he has suffered an injury is generally an issue of fact to be determined by the jury; only where the facts are so clear that reasonable minds cannot differ may the commencement of the limitations period be determined as a matter of law.” Id.
The court finds that there are issues of material fact regarding the determination of the applicability of the statute of limitations in this matter. The crux of the issue is determining when Popowich was aware, or should have reasonably been aware, that he was injured by Momjian.
II. Muhammad’s Impact on Barring a Claim Arising From Dissatisfaction With the Settlement
Movants rely on the case of Muhammad v. Strassburger, 526 Pa. 541, 587 A.2d 1346 (1991), in support of their claim that Popowich should not be able to bring suit based on his dissatisfaction with the settlement. In Muhammad, plaintiffs in a medical malpractice action agreed to accept a monetary settlement from defendants in exchange for dismissing their lawsuit. Id. at 547, 587 A.2d at 1349. After they agreed to the settlement, plaintiffs changed their minds and decided that the settlement amount was not enough money. Id. Plaintiffs sued their attorneys for legal malpractice because plaintiffs were dissatisfied with the monetary settlement. The Pennsylvania Supreme Court stated that a client cannot sue his attorney for legal malpractice when the client is simply dissatisfied with the terms of the settlement, unless the client can show that he was fraudulently induced to settle the original action. Id. at 546,587 A.2d at 1348. Movants in the present case argue that, since there is no allegation
However, six years later, in McMahon v. Shea, 547 Pa. 124, 688 A.2d 1179 (1997), the Pennsylvania Supreme Court expressly limited Muhammad to the facts of that case.
CONCLUSION
For all the foregoing reasons, Schnader and Momjian’s motion for summary judgment is denied. The court will
ORDER
And now, October 17, 2005, upon consideration of plaintiff Schnader, Harrison, Segal & Lewis LLP and third-party defendant Albert Momjian’s motion for summary judgment, and response thereto, and in accordance with the court’s contemporaneously filed opinion, it is hereby ordered and decreed that said motion is denied.
. The Montgomery court did not address in its order the $10,000 that Gerson allegedly charged on Popowich’s credit card for her counsel fees.
. Popowich appealed the denial of his petition. On August 23, 2005, the Superior Court of Pennsylvania affirmed the October 26, 2004 order of the Montgomery court on the grounds that “Popowich waived any right he previously retained to claim a $60,000 credit against the estate by entering into the settlement agreement and subsequent divorce decree without specifically raising this issue.” The Superior Court further found that the phrase “will pay his or her own fees” acted prospectively from the settlement agreement. See Gerson v. Popowich, no. 3226 EDA 2004.
. It is noted that Popowich filed his counterclaim on October 21, 2004. The Court of Common Pleas of Montgomery County issued its order on October 26, 2004. Therefore, Popowich filed his counterclaim against Schnader, as opposed to his third-party complaint against Momjian, before he learned of the Montgomery court’s decision on his petition. Thus, Popowich arguably knew of his cause of action against Schnader before the Montgomery court rendered its decision.
. Specifically, the court stated, “It appears that confusion has arisen in this area of the law due to the unwarranted expansion of Muhammad ... In summary, we find that the analysis of Muhammad is limited to the facts of that case.” McMahon, 547 Pa. at 131, 688 A.2d at 1182.
