On February 19, 2013, the Superior Court issued an opinion in O’Kelly v. Dawson, 421 WDA 2012. Superior Court’s opinion by Judge Wecht upheld a legal malpractice verdict in favor of plaintiff, James O’Kelly who was represented by defendant/appellant, Michele S. Dawson, Esquire, in an underlying divorce. The primary allegation was the attorney had not finalized an alimony agreement between the spouses, and as a result, a less favorable alimony award was entered by the master in the divorce action. The appeal argued the spouses never agreed on all of the essential terms of the alimony agreement, and the statute of limitations barred legal malpractice action.
The Superior Court determined that the jury was presented with conflicting evidence with respect to whether the essential terms of alimony had been agreed upon, and found their decision that an agreement had been reached did not “shock the conscience.” The Superior Court noted it could not put itself “into the jury’s place.”
The statute of limitations argument was not before the jury, but argued in a motion for summary judgment, as well as a post-trial motion. The appellant had requested the issue of statute of limitations not be sent to the jury, but be decided by the judge. The trial court found the statute of limitations was tolled by the equitable discovery doctrine until the date of the trial court order adopting the master’s recommendation. On appeal, it was argued that no two reasonable minds could disagree the statue limitations barred the claim, and in the alternative, that the trial judge erred in not sending the issue to the jury with respect to the exercise of reasonable diligence by the husband in discovering the alleged error. The court noted appellant argued before the trial court that no two reasonable minds could differ in finding that the plaintiff knew, or should have known, of the potential malpractice as of the date of the master’s recommendation, and therefore the issue should not go before the jury. The appellant succeeded as to process, “but failed as to substance.” While recognizing this would usually be an issue for the jury, the Superior Court found appellant could not “now be heard to assert that the trial court erred in granting Appellant’s request that the limitations issue be reserved for the court.” The Superior Court found the argument that the issue should have been sent to the jury had been waived. The Superior Court found the trial court “necessarily made a factual finding as to Husband’s reasonable diligence.” The Superior Court noted that following the master’s recommendation, appellant had advised the husband the trial court would reject the master’s recommendation and order alimony to reflect the parties’ proposed alimony agreement.
Judge Colville filed a dissenting opinion. The dissenting opinion was not published with the majority opinion.
Professional liability avoidance requires attorneys to be aware of the possibility of equitable tolling of the statute limitations. While Pennsylvania operates under a strict “occurrence rule” with respect to the statute of limitations, the statute may be tolled if an attorney offers reassurances of a positive result after an alleged act of negligence.