The state Superior Court has denied Cozen O’Connor’s request to reopen a discontinued suit filed against it by former Wolf Block attorneys in order to get a ruling that the statute of limitations wasn’t tolled.
In an opinion filed Tuesday, a three-judge panel led by President Judge Correale F. Stevens affirmed a ruling by Philadelphia Court of Common Pleas Judge William J. Manfredi denying Cozen O’Connor’s petition to strike the plaintiffs’ praecipe to voluntarily discontinue their suit without prejudice.
Stevens said Manfredi did not abuse his discretion in determining that it was unnecessary to strike the praecipe in order to protect Cozen O’Connor from “unreasonable inconvenience, vexation, harassment, expense, or prejudice” under Pa.R.Civ.P. 229.
“Simply put, where, as here, appellees never attempted service of the writ of summons, did not file a complaint, and then voluntarily discontinued the action, we cannot find appellant’s ‘motion for a rule to show cause as to why the action should not be non prossed’ was clearly a dispositive motion requiring the trial court to strike off appellees’ praecipe for discontinuance pursuant to Pa.R.Civ.P. 229(c),” Stevens said.
Stevens was joined by Judges Kate Ford Elliott and Cheryl Lynn Allen.
In O’Connor v. Cozen O’Connor, according to Stevens, the plaintiffs who filed the writ of summons — former Wolf Block attorneys Kevin J. O’Connor, Lynne Z. Gold-Bikin, Rebecca Rosenberger Smolen and John M. Loalbo — started the case in Philadelphia trial court in March 2011. It was then continued five times over several months, with no complaint ever being filed. Only Rosenberger Smolen and Loalbo remain in the case, with O’Connor and Gold-Bikin no longer plaintiffs.
Cozen O’Connor partner H. Robert Fiebach told the Superior Court during oral arguments in October that the suit was begun March 23, 2011, two years to the day from Wolf Block’s dissolution vote. Fiebach said Cozen O’Connor had hired more than 60 attorneys from Wolf Block and added that as far as Cozen O’Connor knew, that was the only connection that could have explained the lawsuit.
Cozen O’Connor, arguing the firm was never properly served the writ, filed a motion for a rule to show cause as to why the action should not be non prossed. But before Manfredi could rule on that motion, the plaintiffs withdrew their writ, saying they may look to refile the case in New Jersey, according to Stevens.
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, according to Stevens. The firm’s motion was denied and Cozen O’Connor took its case to the Superior Court, arguing that the plaintiffs had violated the state Supreme Court’s 1976 ruling in Lamp v. Heyman, which held that a writ of summons is rendered ineffective to commence an action when the plaintiff subsequently attempts to stall the legal process.
In a 12-page opinion, Stevens contrasted the procedural history of O’Connor with that of the 1994 case Foti v. Askinas, in which the Superior Court found that a trial judge had erred in discontinuing a suit that had already been pending for about five years, during which time the defendants had been forced to litigate the matter.
The Foti court said a discontinuance might have improperly subjected the defendants to the same litigation again, according to Stevens.
The proceduralhistory of O’Connor, however, is different, Stevens said, since less than six months passed between the filing of the writ and the filing of the praecipe to discontinue the action, during which very little activity took place.
“During this less-than-six-month time period, appellees never served appellant, appellees never requested appellant appear in any manner, appellees did not file a complaint, and there certainly was no discovery,” Stevens said. “In fact, it is not entirely clear how appellant discovered appellees had filed the praecipes for writ of summons; however, in any event, it is clear that appellant voluntarily inserted itself into the proceedings when, on September 2, 2011, it filed a motion for a rule to show cause as to why it was not entitled to a judgment of non pros.”
Cozen O’Connor argued that it had been prejudiced by the discontinuance of the matter since its motion for a rule to show cause was a dispositive motion pending at the time the plaintiffs’ praecipe to discontinue was filed, according to Stevens.
According to Cozen O’Connor, Manfredi should have considered its motion and determined, pursuant to Lamp, that the plaintiffs had failed to make a good-faith effort to serve the law firm in an attempt to stall the judicial process, Stevens said.
But Stevens, citing the Superior Court’s 1998 ruling in Fox v. Thompson thata defect in a writ cannot be challenged until a complaint is filed, said Cozen O’Connor’s motion for a rule to show cause was not a proper challenge to the plaintiffs’ failure to serve the writ.
Stevens also pointed to the Supreme Court’s 2005 ruling in McCreesh v. City of Philadelphia, in which it ruled that Lamp cannot be applied in a case in which a plaintiff never serves a defendant.
As for Cozen O’Connor’s argument that it had been prejudiced because the plaintiffs only discontinued their action in Pennsylvania so they could refile it in New Jersey, Stevens sided with Manfredi’s reasoning that there was no reason to strike the discontinuance because there were never any verified pleadings in the case.
Fiebach told The Legal on Thursday that the firm disagrees with the ruling.
Loalbo told The Legal on Thursday that he felt the Superior Court was “right on.”
Rosenberger Smolen said Thursday that she was happy with the ruling and was not sure what her and Loalbo’s next step would be..
(Copies of the 12-page opinion in O’Connor v. Cozen O’Connor, PICS No. 12-2249, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •