J-A07035-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
AMERICAN MUSHROOM : IN THE SUPERIOR COURT OF
COOPERATIVE, F/D/B/A EASTERN : PENNSYLVANIA
MUSHROOM MARKETING :
COOPERATIVE, INC, MONTEREY :
MUSHROOMS, INC., GIORGI :
MUSHROOM CO., GIORGIO FOODS, :
INC., JOHN PIA, BELLA MUSHROOM :
FARMS, BROWNSTONE MUSHROOM :
FARMERS, INC., TO-JO FRESH : No. 1780 EDA 2022
MUSHROOMS, COUNTRY FRESH :
MUSHROOM CO., KAOLIN :
MUSHROOM FARMS, INC., MODERN :
MUSHROOM FARMS, INC., PHILLIPS :
MUSHROOM FARMS, INC., LOUIS M. :
MARSON, JR., INC., GALE FERANTO :
T/A BELLA MUSHROOM FARMS AND :
PETE FERANTO T/A BELLA :
MUSHROOM FARMS :
:
:
v. :
:
:
SAUL EWING ARNSTEIN & LEHR, LLP, :
F/K/A SAUL EWING AND BERGER :
MONTAGUE, P.C. :
:
:
APPEAL OF: GIORGI MUSHROOM :
COMPANY AND GIORGIO FOODS, :
INC. :
Appeal from the Order Entered June 13, 2022
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): 200302211
AMERICAN MUSHROOM : IN THE SUPERIOR COURT OF
COOPERATIVE, F/D/B/A EASTERN : PENNSYLVANIA
MUSHROOM MARKETING :
COOPERATIVE, INC, MONTEREY :
MUSHROOMS, INC., GIORGI :
MUSHROOM CO., GIORGIO FOODS, :
INC., JOHN PIA, BELLA MUSHROOM :
J-A07035-23
FARMS, BROWNSTONE MUSHROOM :
FARMERS, INC., TO-JO FRESH : No. 1783 EDA 2022
MUSHROOMS, COUNTRY FRESH :
MUSHROOM CO., KAOLIN :
MUSHROOM FARMS, INC., MODERN :
MUSHROOM FARMS, INC., PHILLIPS :
MUSHROOM FARMS, INC., LOUIS M. :
MARSON, JR., INC., GALE FERANTO :
T/A BELLA MUSHROOM FARMS AND :
PETE FERANTO T/A BELLA :
MUSHROOM FARMS :
:
:
v. :
:
:
SAUL EWING ARNSTEIN & LEHR, :
LLP, F/K/A SAUL EWING AND :
BERGER MONTAGUE, P.C. :
:
:
APPEAL OF: AMERICAN MUSHROOM :
COOPERATIVE, ETC., ET AL. :
Appeal from the Order Entered June 13, 2022
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): 200302211
BEFORE: DUBOW, J., McLAUGHLIN, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED APRIL 5, 2023
In this legal malpractice matter, plaintiffs Giorgi Mushroom Company
and Giorgio Foods, Inc. (Giorgio), as well as American Mushroom Cooperative,
etc., et al. (AMC) (collectively, Appellants),1 appeal from the order entered in
____________________________________________
1 Giorgi and AMC are represented by different counsel and filed separate
notices of appeal. This Court consolidated their appeals, and they have
submitted a joint brief.
-2-
J-A07035-23
the Philadelphia County Court of Common Pleas, granting the motion for
judgment on the pleadings filed by defendant Saul Ewing Arnstein & Lehr, LLP,
f/k/a Saul Ewing (Appellee).2 The trial court found Appellants’ tort and
contract claims were barred by the statutes of limitations.3 On appeal,
Appellants avers the trial court erred in: (1) not granting their requests to
amend their pleadings in order to address an email exchange, which would
show Appellee’s deception and thus invoke equitable tolling doctrines; and (2)
finding their claims were time-barred, in part by considering exhibits
improperly attached to Appellee’s motion for judgment on the pleadings. We
affirm.
____________________________________________
2 Appellants’ complaint named two defendants: Appellee and the law firm
Berger Montague, P.C. (Berger Montague). Upon the parties’ stipulation, the
trial court severed and stayed all claims against Berger Montague until further
order. Order, 12/21/20.
Although the underlying order disposed of only the claims against
Appellee, because the trial court had severed the claims against the second
defendant, we determine the order is final for appeal purposes. See Pa.R.A.P.
341(a) (an appeal may be taken as of right from a final order), (b)(1) (a final
order disposes of all claims and of all parties); Stevenson v. Gen. Motors
Corp., 521 A.2d 413, 419 (Pa. 1987) (a severance permits “one separate
cause of action [to be] fully disposed of while others remain independently
unresolved,” and “a severance of actions effects a splitting of them into one
or more independent actions for all purposes, including trial and appellate
procedure”). See also McCutcheon v. Phila. Elec. Co., 788 A.2d 345, 350
n.8 (Pa. 2002) (summarizing same).
3 See 42 Pa.C.S. §§ 5524(7) (action founded on negligent, intentional, or
otherwise tortious conduct must be commenced within two years), 5525(a)(1)
(action upon a contract must be commenced within four years).
-3-
J-A07035-23
I. Alleged Facts
We glean the following undisputed facts from the trial court’s opinion
and the pleadings. Appellant AMC, formerly known as the Eastern Mushroom
Marketing Cooperative, “was formed in 2000 as an agricultural cooperative
under the purview of the federal Capper-Volstead Act[.]”4 See Trial Ct. Op.,
6/13/22, at 1-2. According to Appellants, the Act
was intended to exempt farmers and direct producers of
agricultural products from prohibitions against fixing prices[,]
which is otherwise prohibited by the Sherman Antitrust Act.[5] . . .
[T]he Capper-Volstead Act allows farmers of agricultural
commodities to join together in associations, or cooperatives, to
go to market and counterbalance the overwhelming market power
of the buyers.”[ ]
Id., citing Appellants’ Complaint, 4/24/20, at ¶¶ 30-31. Appellant Giorgio is
a Pennsylvania corporation and was a member of AMC. Appellants’ Complaint
at ¶¶ 14-15. Appellee law firm began representing and advising AMC at its
formation.
One of Appellants’ claims is that Appellee improperly advised and
approved “the inclusion of certain mushroom distributors as members of
____________________________________________
4 7 U.S.C.A. §§ 291-292. The 2004 complaint, by the United States
Department of Justice (DOJ) against AMC (discussed infra), described AMC
as “the nation’s largest mushroom cooperative” and stated AMC members
“accounted for” more than 60% of the nation’s mushroom sales “during the
2001-2002 growing season.” Complaint, U.S. v. E. Mushroom Mktg. Coop.,
Inc., Civil Action No. 04-CV-5829, 12/16/04, at 1, Exh. 13 to Appellee’s
Answer with New Matter, 7/30/20.
5 15 U.S.C. §§ 1-38.
-4-
J-A07035-23
[AMC], when they were not mushroom ‘growers’ as required under [the strict
prerequisites6 of] the Capper-Volstead Act.” Trial Ct. Op. at 3 (emphases
added). Appellants aver these improper membership approvals caused AMC
to be non-compliant with, and consequently ineligible for, the Act’s provisions.
Id. at 6.
We also summarize that Appellee advised Appellants during their 2001-
2002 purchases or leases of six farms, located across the United States, in
connection with “a major mushroom producer[’s]” bankruptcy proceedings.
See Appellants’ Complaint at ¶¶ 46, 51. Appellants then resold or leased
these properties with deed restrictions/leases that prohibited the new
owners/lessees from producing mushrooms on the properties.7 Id. at ¶ 51.
The parties and trial court have referred to this overall scheme as the “Supply
Control Program.” See Trial Ct. Op. at 3.
In 2003, the DOJ began an approximately 18 month investigation of
AMC’s qualifications as a cooperative, as well as potential antitrust violations
____________________________________________
6 See Appellants’ Complaint at ¶ 39.
7 Appellants averred: “By limiting the capacity to grow and produce
mushrooms, [AMC] could better control the production, handling, and
marketing of mushrooms.” Appellants’ Complaint at ¶ 47. They also
explained they resold or sublet some of these properties at a loss. Id. at ¶ 51.
-5-
J-A07035-23
arising from the deed restrictions.8 On December 16, 2004, the DOJ filed an
antitrust complaint in the federal District Court for the Eastern District of
Pennsylvania.9 Four days later, AMC agreed to a consent decree, under which
it would not admit liability but agreed to nullify the deed restrictions and
“reverse and dismantle the Supply Control Program.” See Trial Ct. Op. at 3-
4; Appellants’ Complaint at ¶ 52. Final judgment in this DOJ matter was
entered on September 9, 2005.10
Subsequently, direct purchasers of mushrooms (retailers and
distribution outlets) filed lawsuits against AMC, challenging the prior deed
restrictions and Supply Control Program. See Trial Ct. Op. at 4; Appellants’
Complaint at ¶ 53. “These cases were consolidated, and a Consolidated
Amended Class Action Complaint was filed in June 2006[,]” similarly in the
____________________________________________
8 See In re Mushroom Direct Purchaser Antitrust Litig., 621 F.Supp.2d
274, 280 (E.D.Pa. 2009) (Antitrust Litig.) (class action lawsuit, discussed
infra); Appellants’ Complaint at 4.
While a subsequent federal court opinion stated the investigation was
18 months long, Antitrust Litig., 621 F.Supp.2d at 280, Appellee’s new
matter suggested the investigation lasted 20 months. See Answer with New
Matter at 61, 64 (stating Appellee confirmed there was a DOJ investigation on
February 4, 2003, and DOJ made settlement offer on October 15, 2004). For
ease of discussion, we will refer to this investigation as lasting 18 months.
9 The DOJ also averred AMC “conspire[d] to prevent independent, nonmember
farmers from competing with [AMC] or its members.” DOJ’s Complaint at 2.
10 Antitrust Litig., 621 F.Supp.2d at 280.
-6-
J-A07035-23
Eastern District of Pennsylvania.11 Trial Ct. Op. at 4. On March 26, 2009, the
federal court concluded, pertinently, that “the uncontested nature of” one AMC
member as a non-farmer rendered the entire AMC cooperative ineligible for
Capper-Volstead immunity. Antitrust Litig., 621 F.Supp.2d at 284.
According to Appellants, AMC and its members have since entered into
settlements with class action plaintiffs, expending more than $50 million in
legal fees, litigation expenses, and damages. Appellants’ Complaint at 5 & ¶
76.
Finally, we note the following relevant averments in AMC’s complaint
concerning Berger Montague, the second named defendant in this action.
Berger Montague began representing AMC in 2006 in the class action.
Appellants’ Complaint at ¶ 57. In May of 2007, Berger Montague put Appellee
“on notice of a potential [legal malpractice] claim against it” by Appellants.
Id. at ¶ 59. Two years later, on May 7, 2009, Appellants and Appellee
executed a tolling agreement that was drafted by Berger Montague. Id. at
¶¶ 60, 97. This agreement generally provided that the time period, beginning
that same day, shall not be included in calculating statutes of limitations.
Tolling Agreement, 5/7/09, at 1, Exh. B to Appellants’ Complaint.
II. Procedural History
____________________________________________
11 The class action also claimed AMC illegally conspired with non-cooperatives
to fix prices. Antitrust Litig., 621 F.Supp.2d at 283.
-7-
J-A07035-23
As stated above, Appellants and the other plaintiffs filed the underlying
complaint on April 24, 2020, raising claims of legal malpractice sounding in
both tort and contract.12 They averred Appellee: (1) improperly approved
non-mushroom growers to be members of the cooperative, resulting in the
federal court’s conclusion, in the DOJ matter, that AMC did not meet the
requirements of the Capper-Volstead Act; and (2) improperly advised the
Supply Control Program would be permissible under the Capper-Volstead
exemptions.13 Appellants’ Complaint at 4.
Appellee filed an answer and new matter, asserting Appellants’ tort and
contract claims were time-barred under the statutes of limitations.14
Appellee’s Answer with New Matter at 42. Appellee further contended the
____________________________________________
12One month earlier, on March 17, 2020, Appellants filed a praecipe to issue
a writ of summons.
13 Appellants also pleaded legal malpractice claims against Berger Montague,
in the alternative, should Appellants be found to be barred from recovering
against Appellee. The complaint averred Berger Montague “repeatedly
assured” them their claims against Appellee would be protected by the tolling
agreement against any statute of limitations issue. Appellants’ Complaint at
¶ 61.
14 Appellee also averred: (1) it represented AMC only, and all other plaintiffs
lacked standing because they did not have an attorney-client relationship with
it; (2) Appellee did advise that all cooperative members must grow or produce
mushrooms, but AMC “did not follow [this] advice[;]” and (3) Appellee
similarly advised “that restrictive covenants and leases prohibiting mushroom
product carried potential antitrust risk,” but AMC accepted this risk “in
exchange for perceived economic benefit.” Appellee’s Answer with New Matter
to Appellants’ Complaint, 7/30/20, at 16-17, 41.
-8-
J-A07035-23
tolling agreement offered no relief, as the statutes of limitations expired before
it was executed in May of 2009. In support, Appellee maintained the class
action and DOJ complaints were filed, respectively, more than two and four
years earlier. Id. at 42, 68.
Next, on August 16, 2021, Appellee filed the underlying motion for
judgment on the pleadings, reiterating its statutes of limitations defense.
Appellants filed answers and memoranda in support, both contending, inter
alia, that while their answers were sufficient to defeat Appellee’s motion, they
were also requesting, in the alternative, to amend their pleadings to raise
equitable tolling doctrines.15 Specifically, Appellants would address an
October 28, 2004, email exchange between AMC executives and Appellee’s
law partner, Michael Finio, Esquire (Attorney Finio), made approximately “two
weeks after [the] DOJ allegedly proposed the consent decree/judgment.[ ]”
See Appellants’ Brief at 29. Attorney Finio first wrote:
As I have told Bill, I do not think (6) is needed, since it would just
state the obvious and would delay getting this done. DOJ could
of course in the future pursue any NEW activities, and this will
____________________________________________
15 See AMC’s Memorandum of Law in Support of Opposition to Motion of
Appellee for Judgment on the Pleadings, 9/21/21, at 27-28 n.9, 39; Giorgio’s
Response in Opposition to Motion for Judgment on the Pleadings of Appellee,
9/21/21, at 5 n.1.
Appellants aver that after they filed their complaint and answer to
Appellee’s new matter, “hundreds of thousands of pages of documents were
produced in discovery.” Appellants’ Brief at 23. However, Appellants did not
address why the email exchange, which included AMC executives, would not
have already been in AMC’s possession.
-9-
J-A07035-23
always remain the case. I trust you all understand that this
conclusion is essentially a blessing of 99.99% of the legal
advice given to you about the conduct of [AMC’s] affairs
over the last few years. This is a tremendous outcome.
Email Exchanges, 10/28/04, Exh. A to Giorgio’s Response in Opposition to
Motion for Judgment on the Pleadings of Appellee (emphasis added). On that
same day, an individual named Dave Carroll replied:
I vote to accept the proposal as amended and do not think we
need to push the issue in number 6. It is a great outcome.
Id. Appellants argued these emails would show: (1) Attorney Finio “sold
[AMC] on the Proposed Judgment,” by characterizing the DOJ action as a
“blessing” of Appellee’s legal advice; but (2) this advice contradicted
Appellee’s present argument, that the DOJ action was a “trigger that should
have alerted” Appellants to a potential legal malpractice claim. Giorgio’s
Response in Opposition to Motion for Judgment on the Pleadings at 5 n.1.
On December 15, 2021, the trial court granted in part Appellee’s motion
for judgment on the pleadings, finding some of Appellants’ claims — those
relating to the Supply Control Program — were time-barred. The court,
however, denied Appellee’s remaining requested relief. Both Appellants and
Appellee filed motions for reconsideration. Appellants again argued, inter alia,
that they should be permitted to amend their pleadings to address Attorney
Finio’s October 28, 2004, email.
On June 13, 2022, the trial court granted Appellee’s motion for
reconsideration, vacated the December 15, 2021, order, and granted
- 10 -
J-A07035-23
Appellee’s motion for judgment on the pleadings in full. The court now
concluded all of the plaintiffs’ claims were time barred. Pertinently, the court
found Appellants’ argument concerning Attorney Finio’s 2004 email to be
“puffery,” where Appellants could not “overcome the cold hard fact that [AMC]
consented to a public judgment that overturned the entire Supply Control
Program, which was allegedly undertaken based on [Appellee’s] advice.” Trial
Ct. Op. at 8 n.22. The court thus entered judgment in favor of Appellee. Both
Appellants timely appealed.16
III. Statement of Questions Involved
Appellants present two issues for our review:
1. Did the trial court err in repeatedly failing to grant the requests
[of Appellants] for leave to amend their pleadings, in order to
clarify the existence of certain issues of fact concerning the
application of equitable tolling doctrines?
2. Even absent the requested amendment, in applying the
standard of review for motions for judgment on the pleadings, did
the trial court err in determining that the statute of limitations
bars [Appellants’] claims, without recognizing existing issues of
fact?
Appellants’ Brief at 5.
IV. Standard of Review and General Law on Statute of Limitations
We first consider the relevant guiding principles and standard of review:
Entry of judgment on the pleadings is permitted under
Pennsylvania Rule of Civil Procedure 1034, which provides that
____________________________________________
16 The trial court did not direct Appellants to file a Pa.R.A.P. 1925(b) statement
of errors complained of on appeal.
- 11 -
J-A07035-23
“after the pleadings are closed, but within such time as not to
unreasonably delay trial, any party may move for judgment on
the pleadings.” Pa.R.C.P. 1034(a). A motion for judgment on the
pleadings is similar to a demurrer. It may be entered when there
are no disputed issues of fact and the moving party is entitled to
judgment as a matter of law.
Appellate review of an order granting a motion for judgment on
the pleadings is plenary. The appellate court will apply the same
standard employed by the trial court. A trial court must confine
its consideration to the pleadings and relevant documents. The
court must accept as true all well pleaded statements of fact,
admissions, and any documents properly attached to the
pleadings presented by the party against whom the motion is filed,
considering only those facts which were specifically admitted.
We will affirm the grant of such a motion only when the moving
party’s right to succeed is certain and the case is so free from
doubt that the trial would clearly be a fruitless exercise.
Coleman v. Duane Morris, LLP, 58 A.3d 833, 836 (Pa. Super. 2012)
(citations omitted).
A claim of legal malpractice requires a plaintiff to establish:
employment of the attorney or other basis for a duty; the failure
of the attorney to exercise ordinary skill and knowledge; and that
the attorney’s negligence was the proximate cause of damage to
the plaintiff.
Communications Network Int’l v. Mullineaux, 187 A.3d 951, 960 (Pa.
Super. 2018) (citation & quotation marks omitted).
As stated above, the statute of limitations for a negligence action is two
years, while an action upon a contract must be commenced within four years.
42 Pa.C.S. §§ 5524(7), 5525(a)(1). “Pennsylvania favors strict application of
the statutes of limitation.” Communications Network Int’l, 187 A.3d at
961 (citation omitted). “[T]he question of when a statute of limitations runs
- 12 -
J-A07035-23
is a matter typically decided by the trial judge as a matter of law . . . , unless
the issue involves a factual determination.” Id. at 962 (citation omitted).
“[T]he trigger for the accrual of a legal malpractice action . . . is not the
realization of actual loss, but the occurrence of a breach of duty.” Id. at 960
(citation omitted).
However, the equitable discovery rule provides an exception, where “the
injured party is unable, despite the exercise of due diligence, to know of the
injury or its cause.” Communications Network Int’l, 187 A.3d at 961
(citation omitted). This rule
“tolls the statute of limitations when an injury or its cause is not
reasonably knowable.” The purpose of this rule is clear: to
“ensure that persons who are reasonably unaware of an injury
that is not immediately ascertainable have essentially the same
rights as those who suffer an immediately ascertainable injury.”
The plaintiff’s inability to know of the injury must be “despite the
exercise of reasonable diligence[.]” . . .
Rice v. Diocese of Altoona-Johnstown, 255 A.3d 237, 247 (Pa. 2021)
(citations omitted).
Furthermore, our Supreme Court has stated:
The fraudulent concealment doctrine is a distinct but related
theory. . . . Fraudulent concealment . . . is rooted in the
recognition that fraud can prevent a plaintiff from even knowing
that he or she has been defrauded. . . .
* * *
Where, “through fraud or concealment, the defendant
causes the plaintiff to relax his vigilance or deviate from
his right of inquiry,” the defendant is estopped from
invoking the bar of the statute of limitations. Moreover,
defendant’s conduct need not rise to fraud or
- 13 -
J-A07035-23
concealment in the strictest sense, that is, with an intent
to deceive; unintentional fraud or concealment is
sufficient. Mere mistake, misunderstanding or lack of
knowledge is insufficient however, and the burden of
proving such fraud or concealment, by evidence which is
clear, precise and convincing, is upon the asserting party.
[The fraudulent concealment doctrine asks] whether the fraud or
concealment “cause[d] the plaintiff to relax his vigilance or deviate
from his right of inquiry[.]” . . .
Rice, 255 A.3d at 247-48 (citations omitted).
V. Attorney Finio’s October 28, 2004, Email
In their first issue, Appellants assert the trial court erred in not granting
their “repeated requests to amend their pleadings.”17 Appellants’ Brief at 22.
Appellants reiterate their argument that Attorney Finio’s October 28, 2004,
email was deceptive and “induced [them] into agreeing to . . . the DOJ consent
decree . . . by representing that it was ‘a tremendous outcome’ and ‘[a]
blessing of 99.9% of [Appellee’s] legal advice.’” Id. at 30. Appellants claim
the email message “would have caused ‘reasonable minds’ to relax their
vigilance[.]” Id. They thus contend the email message presents an issue of
fact as to whether: (1) the DOJ action “should have awakened inquiry and
____________________________________________
17 Appellee suggests Appellants failed to “properly present[ ]” this issue to the
trial court, because they did not file a separate or standalone petition to
amend. Appellee’s Brief at 11. However, Appellees do not cite, and we have
not discovered, any authority requiring, on pain of waiver, a particular
procedure for seeking leave to amend pleadings. See Pa.R.C.P. 1033(a) (“A
party, either by filed consent of the adverse party or by leave of court, may
at any time . . . amend the pleading. . . . ”).
- 14 -
J-A07035-23
caused [Appellants] to discover that they had been injured by” Appellee’s legal
malpractice; or alternatively (2) the “discovery rule” or doctrine of fraudulent
concealment should apply to toll the statutes of limitations. Id. at 25, 30-31.
With respect to the trial court’s reasoning, Appellants insist “[t]he pertinent
issue . . . is not whether the Finio email was ‘puffery,’ but whether,
intentionally deceptive or not, it . . . created a factual dispute as to whether
reasonable minds would be lulled into relaxing their vigilance[.]” Id. at 31.
Appellants conclude these questions of fact were for the jury, not the court,
to decide. Id. at 32. We conclude no relief is due.
Appellants “claim that it was [Appellee’s] incorrect legal advice[, given
from 2000 through 2002,] that led to the improper Membership Approvals of
[mushroom] distributors, which caused [AMC] to lose its” protections under
the Capper-Volstead Act. Trial Ct. Op. at 6-7. We note Appellants do not
identify any particular date or occurrence on which they believe the statutes
of limitations should begin to run. Instead, they broadly concede that “without
the application of any . . . tolling doctrines, the limitations periods for their
malpractice claims would have expired prior to the May 7, 2009 Tolling
Agreement[.]” See Appellants’ Brief at 24.
As stated above, the trial court concluded the statutes of limitations
began to run in December of 2004, when AMC agreed to enter the consent
decree with the DOJ, under which AMC “was ordered and directed” to nullify
the deed restrictions. Trial Ct. Op. at 8 (citation omitted). The court found
- 15 -
J-A07035-23
that at this time, AMC “knew or should have known that it was injured by
[Appellee’s] previous, erroneous, antitrust advice regarding the legitimacy of
those deed restrictions and the Supply Control Program[.]” Id. The court
also pointed out AMC “necessarily incurred costs and attorneys’ fees in
connection with the [DOJ] investigation and the invalidation of the Supply
Control Program.” Id. at 4.
The trial court addressed Appellants’ request to amend their pleadings
in order to add allegations that Appellee concealed information “or lulled them
into a false belief in order to dissuade them from filing suit against” Appellee.
Trial Ct. Op. at 8 n.22 (citation omitted). The court rejected Appellants’
arguments concerning Attorney Finio’s email as “puffery,” reasoning
Appellants “cannot overcome the cold hard fact that [AMC] consented to a
public judgment that overturned the entire Supply Control Program, which”
Appellants acknowledge they undertook based on Appellee’s advice. Id.
The trial court acknowledged the costs and fees AMC later incurred, in
connection with the class action, were much greater than those related to the
DOJ investigation. Trial Ct. Op. at 8. Nevertheless, the court reasoned,
Appellants could not wait until their injuries became “overwhelming before
bringing suit.” Id. Furthermore, the class action, beginning in 2005 and
2006, ‘was premised in large part upon the same incorrect advice regarding
the Supply Control Program . . . so it does not reset the Statute of Limitations
clock on” Appellants’ claims. Id. at 9-10.
- 16 -
J-A07035-23
We agree with the trial court’s reasoning. Appellants isolate the October
28, 2004, email language — “a tremendous outcome” and a “blessing” — to
claim Attorney Finio deceived them into believing the DOJ’s investigation was
an endorsement or approval of Appellee’s legal advice. See Appellant’s Brief
at 30. However, Appellants’ argument ignores that the DOJ’s proposal
followed 18 months of investigation for antitrust violations, and the consent
decree required AMC to nullify and “reverse and dismantle” the very activities
that were the subject of the investigation. See Trial Ct. Op. at 4.
Notwithstanding Attorney Finio’s earlier email urging AMC to agree to the
consent decree, we agree with the trial court that “reasonable minds would
not differ in finding” that once AMC accepted the consent decree, Appellants
were aware of a potential breach of duty. See Communications Network
Int’l, 187 A.3d at 960; Trial Ct. Op. at 8. Accordingly, we do not disturb the
court’s conclusion that the statutes of limitations for Appellants’ tort claims
ran in December of 2006, and for their contract claims in December of 2008.
Appellants’ complaint, filed in April of 2020, is thus time-barred.
Furthermore, we reject Appellants’ reliance on the tolling agreement.
As they aver in their own complaint, in May of 2007, Berger Montague
contacted Appellee on Appellants’ behalf “to place the firm on notice of a
potential claim against it.” Appellants’ Complaint at ¶ 59. The tolling
agreement was executed two years later, on May 7, 2009. Id. at ¶ 60. Where
the statute of limitations for a tort claim is two years, we agree with Appellee
- 17 -
J-A07035-23
that Appellants cannot now claim that in 2007, they lacked “sufficient critical
facts to put [them] on notice” of a potential malpractice claim. See Appellee’s
Brief at 12 (citation omitted). For the above reasons, we conclude no relief is
due on Appellants’ contention that the trial court erred in not granting their
request to amend their pleadings. The trial court properly concluded there
were no disputed issues of fact and Appellee was entitled to judgment as a
matter of law. See Coleman, 58 A.3d at 836.
VI. Appellee’s Reliance on Exhibits & Appellants’ Admissions
In Appellants’ second issue, they again argue the trial court failed to
recognize issues of fact and thus erred in determining their claims were barred
by the statutes of limitations. In support, they allege Appellee’s motion for
judgment on the pleadings improperly relied on documents that were: (1) not
attached as exhibits by Appellants; or (2) not specifically admitted by
Appellants.18 Appellants’ Brief at 33. These documents include: (1) the DOJ’s
March 31, 2003, Civil Investigative Demands, which requested AMC to provide
certain documents and answer interrogatories, and the accompanying cover
letter from the DOJ; (2) a March 7, 2001, email from Attorney Finio, which
stated “‘there will likely not be any firm precedents’ for the use of restrictive
____________________________________________
18 See Coleman, 58 A.3d at 836 (in considering a motion for judgment on
the pleadings, a “court must accept as true . . . any documents properly
attached to the pleadings presented by the party against whom the motion is
filed, considering only those facts which were specifically admitted”).
- 18 -
J-A07035-23
covenants” and thus purportedly showed Appellee’s uncertainty in their legal
advice; and (3) March 23, 2001, emails from Attorney Finio concerning a
request, from Appellant Giorgio, for an opinion letter on the validity of AMC’s
purchase of a mushroom farm. Id. at 38-39, 46-47. Indeed, Appellants
maintain, their admissions in their pleadings tended to show they were not
aware, due to Appellee’s legal advice to the contrary, that the Supply Control
Program was not protected by the Capper-Volstead Act. Id. at 44-45.
Appellants also cite an undated “strategic planning meeting in Hershey,
Pennsylvania,” where one AMC member voiced concern as to whether the
deed restrictions would be permitted under the Capper-Volstead Act, and
Attorney Finio “shut down any further dialogue” by asking “where the hell did
[the AMC member] get [his] law degree.” Id. at 45 (citation omitted). We
conclude no relief is due.
We incorporate our discussion above, especially the trial courts’ finding
that it was Appellants’ agreement, in December of 2004, to the DOJ’s
proposed consent decree, following an 18-month antitrust investigation, that
put Appellants on notice of a potential injury caused by Appellee’s deficient
legal representation. Appellants’ present reliance on emails sent and received
three years prior to that date, as well as their arguments concerning
admissions in the pleadings, is not persuasive. The trial court properly
considered the undisputed averments in the pleadings: that the DOJ
investigated AMC, and then filed a lawsuit, for antitrust violations arising from,
- 19 -
J-A07035-23
inter alia, the deed restrictions, and AMC agreed to a consent decree, entered
as a final judgment in federal court, under which it was required to nullify the
deed restrictions. We find specious Appellants’ present argument — that
Appellee’s statements, in the face of a proposed settlement by the DOJ that
required Appellants to nullify the deed restrictions, led Appellants to believe
their activities were nevertheless protected under the Capper-Volstead Act.
Accordingly, no relief is due.
VII. Conclusion
For the foregoing reasons, we affirm the order of the trial court granting
Appellee’s motion for judgment on the pleadings, on the ground that all of
Appellants’ negligence and contract claims, as against Appellee, are barred by
the statutes of limitations.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/05/2023
- 20 -