Legal Mal Case Tossed for Lack of Merit Certificates
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.