One of the former Wolf Block lawyers who filed a writ of summons against Cozen O’Connor and then withdrew it told the Pennsylvania Superior Court on Tuesday that Cozen O’Connor can’t seek to reopen the discontinued case to get a ruling that the statute wasn’t tolled considering no one knows what claims would have been raised in the suit to toll in the first place.

“[Cozen O'Connor is] in the same position they were in before the writ was filed,” former Wolf Block lawyer John Loalbo told the three-judge panel.

And so too are the remaining plaintiffs, Loalbo and Rebecca Rosenberger Smolen, who, if they choose to refile a complaint elsewhere will have to contend with the applicable statute of limitations on their claims, Loalbo said.

Cozen O’Connor is looking to reopen the discontinued lawsuit filed against it by Loalbo, Smolen, Kevin O’Connor and Lynne Gold-Bikin and get a ruling that the firm was never properly served the writ and therefore the statute of limitations cannot be tolled on the plaintiffs’ claims.

Gold-Bikin and O’Connor have since dropped out of the case. A Philadelphia trial judge had ruled earlier this year that there was nothing to warrant opening the case to rule on a motion he said the firm never needed to file given it was never properly served with a lawsuit.

H. Robert Fiebach of Cozen O’Connor told President Judge Correale F. Stevens and Judges Kate Ford Elliott and Cheryl Allen on Tuesday that the suit was filed March 23, 2011, two years to the date from when Wolf Block voted to dissolve. Fiebach said Cozen O’Connor ended up hiring more than 60 attorneys from Wolf Block and said as far as Cozen O’Connor knew, that was the only connection to why it would be sued.

Fiebach argued the plaintiffs “intentionally withheld” the writ from being served and continued it five times. He said Cozen O’Connor should be entitled to a Lamp v. Heyman finding dismissing the writ and ruling the statute was not tolled. In Lamp, the state Supreme Court ruled in 1976 that the statute of limitations barred a plaintiff from refiling a writ that he delayed serving.

“A writ of summons shall remain effective to commence an action only if the plaintiff then refrains from a course of conduct which serves to stall in its tracks the legal machinery he has just set in motion,” the Lamp court ruled.

In O’Connor v. Cozen O’Connor, the writ was filed and continued five times over several months, with no complaint ever being filed. Cozen O’Connor, arguing the firm was never properly served the writ, moved to have the case dismissed with prejudice. But before the judge could rule on that motion, the plaintiffs withdrew their writ, saying they may look to refile the case in New Jersey, according to the trial judge’s opinion.

When the judge discontinued the suit because of its withdrawal, Cozen O’Connor moved to reopen the case to get a ruling that the statute of limitations on the plaintiffs’ claims were not tolled by the filing of the writ because it was never properly served. The firm’s motion was denied and Cozen O’Connor took its case to the Superior Court.

During Fiebach’s argument to the court, Ford Elliott asked him about the trial judge’s argument that the judge doesn’t have the authority to reinstate a case that was voluntarily withdrawn by the plaintiffs. Fiebach said the judge does have the power to strike off a discontinuance under Rule 229(c), which states a court can grant his motion “to protect the rights of any party from unreasonable inconvenience, vexation, harassment, expense or prejudice.”

“We have all of those,” Fiebach said.

But Philadelphia Court of Common Pleas Judge William Manfredi had ruled in May that Cozen O’Connor didn’t face any of those problems.

“First, we note that there was no inconvenience, vexation, harassment, expense or prejudice here that was not of [Cozen O'Connor's] own making,” Manfredi said. “A writ had been filed and reinstated, but never served, so there was no obligation upon [Cozen O'Connor] to do anything. Rather, [Cozen O'Connor] chose to enter its appearance, though never served, and file a motion not apparently authorized by the rules, seeking relief for which it provided no authority for the court’s power to grant such relief.”

Manfredi also pointed out that it was unclear what statute of limitations was or was not being tolled because no complaint was ever filed in the case and it was unclear what the plaintiffs’ claims would have been or what statute of limitations attached.

“As [Cozen O'Connor's] filings and oral argument make clear, [Cozen O'Connor's] defective and premature intervention was an effort to create a final judgment, which it could then wield as a sword of res judicata in the New Jersey action,” Manfredi said.

In May, Fiebach said Manfredi was correct in observing that, because the plaintiffs never filed the complaint, no one knows what the complaint would have been or whether the statute of limitations would have run.

“We understand that. We weren’t asking him to determine the statute has run,” Fiebach had said. “We were only asking that the filing of the summons did not toll the statute of limitations so that if they then bring an action somewhere else, we have an argument that the dismissal was in essence a dismissal with prejudice.”

When asked in May how the firm would know the claim that formed the basis for the Pennsylvania writ was the same as what might be filed in another court, Fiebach said Cozen O’Connor doesn’t know what the claims would have been but said they can’t be any different in one court from another.

Around the time she withdrew from the suit, Gold-Bikin told The Legal she still believed in its merits, but was just tired and ready to move on.

“Do I believe the management of Cozen was involved before the partners voted to dissolve, yeah I do believe that,” Gold-Bikin had said, adding the gist of the complaint that would have accompanied the withdrawn writ was that attorneys at Cozen O’Connor “conspired” with attorneys at Wolf Block before the dissolution vote to have a group of Wolf Block lawyers join Cozen O’Connor.

As The Legal previously reported, those were the counterclaims raised by O’Connor and others in an arbitration brought by Wolf Block seeking to claw back pay from nearly 50 former partners. Leadership at Cozen O’Connor as well as former Wolf Block leadership have adamantly denied any deal was struck prior to Wolf Block’s dissolution vote.

Gina Passarella can be contacted at 215-557-2494 or at gpassarella@alm.com. Follow her on Twitter @GPassarellaTLI.