A Philadelphia judge tossed a suit alleging an Astor Weiss Kaplan & Mandel attorney mishandled a telecom company's $17 million dispute because it was filed outside of the statute of limitations, according to an opinion filed by the court.
Last month, Philadelphia Court of Common Pleas Judge Patricia McInerney dismissed the legal malpractice suit against Astor Weiss attorney William Mark Mullineaux, finding that the claims had not been made within the statute of limitations. On Monday, McInerney issued a 10-page opinion outlining her reasoning behind dismissing the suit, and asking the state Superior Court to uphold her ruling.
According to the opinion, the plaintiff, Communications Network International, retained Mullineaux in 2001 after it was sued for breach of contract in Pennsylvania federal court by MCI WorldCom Communications. The crux of the malpractice claims stem from Mullineaux's alleged failure to properly plead a counterclaim involving "slamming," which is the theft of telephone customers, and his alleged failure to timely appeal an unfavorable ruling.
The plaintiffs contended the statute of limitations for their malpractice case should have been tolled because Mullineaux allegedly misled them regarding the proceedings, but McInerney determined that a ruling from 2010 citing Mullineaux's alleged failure to pursue the slamming should have put them on notice.
"By 2010, CNI alleges it has lost almost $20 million dollars, which is a hefty incentive for the exercise of attention, knowledge, intelligence and judgment by corporate officers with their own fiduciary duties to the corporation," McInerney said.
Francis Alexander attorney Francis Malofiy, who represented CNI along with Alfred J. "A.J." Fluehr, said his clients should not have been expected to understand the significance of that 2010 opinion, and McInerney prematurely ruled on the issue.
"You can't trick your clients for years, and then say they can't file the claims because they're out of statute," Malofiy said. "It's a unique set of circumstances where the conduct was so bad, and so intentional, it should be construed in our favor" at this phase.
But Arthur Lefco of Marshall Dennehey Coleman Warner & Goggin, who is representing Mullineaux and Astor Weiss, noted that a bankruptcy court initially tossed out the slamming issue in 2006, and said the evidence was "incontrovertible that the plaintiffs were well aware of their alleged harm."
"They were aware of it for at least eight years, and they didn't do anything," he said.