PHILADELPHIA – Due to “determinative” conduct relevant to a pending and two-tiered legal malpractice case not taking place in the jurisdiction of the U.S. District Court for the Middle District of Pennsylvania, a federal judge in Philadelphia has refused to transfer the action there.
Plaintiff Philip Lawrence Moriarty of Hanover first filed suit against Zeff Law Firm, LLC and Gregg L. Zeff of Philadelphia in the Philadelphia County Court of Common Pleas on June 30, accusing the defendants of legal malpractice.
The action was removed to the U.S. District Court for the Eastern District of Pennsylvania on July 29.
The incident which forms the basis for the instant legal malpractice action involves a separate, underlying claim of legal malpractice that the defendants allegedly failed to commence against attorney Eric J. Weisbrod, stemming from his handling of two criminal defense matters – including a hearing on revocation of parole and probation, known as a Gagnon II hearing – for an Adams County criminal case, and a bail hearing in connection with charges for aggravated assault, terroristic threats, simple assault and harassment.
Moriarty’s complaint alleges that as a result of the underlying malpractice claim, his parole/probation for charges associated with recklessly endangering another person and resisting arrest was revoked on or about April 28, 2016, and he was not released from confinement until March 27, 2018 – when his parole revocation was later vacated.
The defendants felt in an Aug. 10 motion that in the interest of justice and for convenience of both the parties and the witnesses involved and that after analysis under the Jumara public-private factors, a transfer should be made to the U.S. District Court for the Middle District of Pennsylvania.
“Plaintiff has alleged a series of events relating to an underlying malpractice claim against his former criminal defense attorney which occurred in Adams County, Pennsylvania. Plaintiff then retained an attorney who practices primarily out of his Mount Laurel, New Jersey office. Defendant eventually terminated plaintiff as a client by sending him correspondence to his residence in York County, Pennsylvania,” per the memorandum.
Since Moriarty resides in York County, the Middle District is closer to his residence for purposes of attending depositions and trial. Therefore, according to the defendants, he will not be inconvenienced if this matter is transferred to the Middle District.
Furthermore, the motion said the majority of the documents and records are located in the Middle District. Those records include attorney Weisbrod’s files, attorney Weisbrod’s financial and insurance records, treatment records of Moriarty, Moriarty’s employment or wage history records, files relating to the two Adams County criminal matters and matters relating to Adams County Work Release Program.
UPDATE
U.S. District Court for the Eastern District of Pennsylvania Judge Michael M. Baylson chose to deny the transfer motion and an associated motion for sanctions on Sept. 30.
“This motion to transfer venue stems from a two-tiered legal malpractice claim: Plaintiff Moriarty alleges that defendants committed legal malpractice by failing to prosecute a separate legal malpractice claim against his defense attorney for actions during plaintiff’s criminal defense and parole hearings,” Baylson stated.
“The question in front of this Court is which alleged malpractice should determine venue: Defendants’ actions in the Eastern District or plaintiff’s former defense attorney’s in the Middle District of Pennsylvania. Because the relevant conduct and claim are defendants’ actions in allegedly mishandling plaintiff’s now-expired prior claim – and because that conduct did not occur in the Middle District of Pennsylvania – the Court will deny defendants’ motion to transfer venue.”
Baylson ruled that the “determinative” events related to the issue of venue took place in the U.S. District Court for the Eastern District of Pennsylvania’s jurisdiction.
“The determinative ‘events or omissions’ relevant to proper venue in a legal malpractice suit under Section 1391(b)(2) are those of the defendant-attorney in providing the allegedly deficient legal services, not those of the underlying claim. In this matter, the Weisbrod claim is only the underlying claim, and those events are not relevant to determining venue,” Baylson said.
“Plaintiff’s argument therefore prevails – defendants provided no services related in the Middle District of Pennsylvania. Instead, the allegedly-deficient legal services – the ‘breach of duty’ giving rise to the present claim – all occurred in either the Eastern District or New Jersey.”
The plaintiff is represented by Mark B. Frost and Joseph P. Guzzardo of Frost & Associates, in Philadelphia.
The defendants are represented by Pamela J. Devine of Bardsley Benedict & Cholden, in Malvern.
U.S. District Court for the Eastern District of Pennsylvania case 2:20-cv-03696
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com