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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

                                      -2-
J-S29004-17


         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[;]
____________________________________________


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.



                                           -3-
J-S29004-17



      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


                                      -4-
J-S29004-17


              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).



                                           -5-
J-S29004-17



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




                                      -6-
J-S29004-17



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.




                                           -7-
J-S29004-17



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.




                                           -8-
                                                         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
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                JONATHAN WHEELER, ESQ. AND                               2658 EDA2016                                       (,•
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                WHEELER, ESQ.                                                                                              !.                    r .J
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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
