A malpractice case against several attorneys and their firms has been tossed after the state Superior Court determined that the case dealt with legal malpractice, not wrongful use of civil proceedings, and therefore lacked the proper certificates of merit.

A three-judge panel of the Superior Court ruled October 4 to uphold the trial court’s decision to dismiss three attorneys and two firms from a case brought by two attorneys, alleging intentional interference with a contractual relationship and intentional infliction of emotional distress, among other things.

The plaintiffs in the case argued that claims for wrongful use of civil proceedings did not require a certificate of merit for each named defendant; however, writing the memorandum in Koral v. Mixon, Senior Judge James J. Fitzgerald III said that the facts of the case indicated that the claim was for professional negligence.

“In an attempt to circumvent the rule, appellants argue that although they filed a certificate of merit, because this is an action of wrongful use of civil proceedings under 42 Pa.C.S. 8351, also known as a Dragonetti action, the filing of a certificate of merit was unnecessary,” Fitzgerald said. “Although appellants claim this is an action of wrongful use of civil proceedings, a review of their complaint belies this assertion.”

According to Fitzgerald, Mark A. Koral and Margaret M. Koral of Koral, Kahn & Koral filed suit against Lauree Sunday Mixon after a case that Mixon filed, alleging legal malpractice on behalf of Margaret Koral, was dismissed.

Along with two other attorneys and their firms that were later dismissed, Koral also filed suit against attorney Joseph Viola and his firm, Joseph Viola P.C., and attorneys John J. DiPaul II and Mona Picciotto of Cohen, DiPaul, Haber & Picciotto. The attorneys were either involved in Mixon’s malpractice claim, or were experts involved in the case, Fitzgerald said.

Although Koral received a default judgment against Mixon for more than $177,000, the Philadelphia Court of Common Pleas dismissed the action against Viola, Picciotto, DiPaul and the firms, citing lack of certification of merit for the claims against DiPaul and Viola, and an expired statute of limitations.

The Korals appealed the decision, arguing that, along with making erroneous factual and evidentiary conclusions in the decision, the court erred when it barred the action due to an expired statute of limitations.

The Korals claimed that, because they filed their action October 28, 2005, and the underlying case was on appeal until the state Supreme Court denied the petition for allowance of appeal October 30, 2003, the two-year statute of limitations had not yet expired.

However, noting that the underlying case was instituted in 1999 and citing the 2007 Superior Court case of Wachovia Bank N.A. v. Ferretti, which held that pendency of an appeal in the underlying case does not toll the statute of limitations in legal malpractice cases, Fitzgerald contended that the Korals’ statute of limitations claim was without merit.

The Korals also argued that no certificate of merit was necessary to pursue the claims against DiPaul and Viola, because the claims were for ordinary, rather than professional, negligence. The Korals cited the Superior Court decision in Sabella v. Estate of Milides, which held that claims for wrongful use of civil proceedings do not require a certificate of merit.

However, Fitzgerald noted that Sabella said that plaintiffs are not exempt from filing certificates of merit “merely because the plaintiff ‘fails to expressly indicate in its complaint that it is asserting a professional liability claim.’” Fitzgerald included several sections from the plaintiffs’ amended complaint that make reference to legal malpractice, reasonable diligence required by an attorney, rules of professional conduct and prudent professionalism, among other things, and concluded that the claims were for legal malpractice.

“Appellants’ claims were predicated on their assertion that the attorney defendants should have known there was a lack of legal authority to support Mixon’s malpractice action, and had a duty not to file the suit based on their professional legal knowledge,” he said. “Knowledge of legal precedent, however, does not fall within the realm of common knowledge and experience.”

Viola, who represented himself, questioned the reason that the case has been pursued for so long, and said he was pleased with the decision.

“Those were exactly the arguments I was making, and they accept them,” he said. “Hopefully it’s over and done with.”

Attorneys Jonathan F. Altman of the Altman Law Firm, who represented the Korals, and Jeffrey McCarron of Swartz Campbell, who represented the appellees, did not return calls for comment.

Max Mitchell can be contacted at 215-557-2354 or mmitchell@alm.com. Follow him on Twitter @MMitchellTLI.

(Copies of the six-page opinion in Koral v. Mixon, PICS No. 13-0194, are available from Pennsylvania Law Weekly. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •