specifically a hearing into whether a pa post nuptial agreement a separation agreement should be set aside at that hearing mr cannot mix counsel did not call for witnesses who would have testified that is x y fat food disclosure  yes i think pennsylvania is a bit unique when it comes to the states i went to law school maryland i actually wrote my law review article on the statue of limitations pennsylvania hat uses an accrual statute that actually causes the statute a lot of limitation to run for even before an injury suffered at times which is sort of the circumstance here that's sort of compensated by the discovery rule which then stays the his assets accurately right that's that's correct here ok so why isn't that the beginning of the statute of limitations for malpractise s people he knew that the the lawyers didn't do that which he thought they should have done and turned out he was right if it did turn out he was right and his lawyers  wrong roger but i think the question is when the course of action arises right that's correct your honor practice and he knew it that time so why shouldn't the rise then well he knew that the witnesses were that he didn't disclose right so he he said he was a i guess a businessman so he knew that lawyers can't tell what judges are going to do now but i think in the practice of law attorney said lydgate cases frequently it's not uncommon for me when i'm doing a case to have a client come to me and proffer a number of witnesses and i will tell the client which witnesses  should be called in which one shouldn't be called and i think one of the reasons why we hire lawyers and or why people hire lawyers is for that expertise i hope you wouldn't tell the client well if we don't call these it's a right because the judge significant on that point is nobody knew how the judge was going to rule mr cox attorney did present evidence at the case and that evidence may very well have been sufficient to uphold the post nuptial agreement itself  i thought the best case for you was the date would be the date of the letter from downey to connally as the discovery date of when you your  the language is that she is the cause of action against run when the person knew the injury by what cause and what time the injury was inflicted but we're focusing on downey today anyw malpractise that it was that it came in the new jersey case well unfortunately they thought that the plaintiff was not that completely and she overheard the surgeon in the second operation saying to the students this is what happens when the surgeon goes out for a coffee break during the operation and that's when she knew something was wrong and the guy was called the lopez case but in this case  particular case i think the court was too strict in determining that they were oak rule occur at the hearing but you're saying that if in fact the statute of limitations read when the when the common pleas judge i assuming that the if the period available to file a suit would have then four days six days i believe oh all right and i'm not you know i thought that if you use the discovery rule you engagement you can define either on the date mr downey sent the lawyers letter or on the day that the retainer was signed either of which date falls within the july that the two thousand and seven of two thousand and five till july seventh two thousand and seven so the the claim is still timely he's retained under either theory and a suit was not brought that's correct and i apologize for the confusion i was when i answer just lovers question i was answering that premised upon no discovery had there not been a discovery rule there would have been six days with the discovery rule there would have been an abundance of time i see that amount of time thank you though that we are dealing with not only and them that's correct yeah the law in pennsylvania that there is no there is no dispute the law in pennsylvania with regard to legal malpractise cases is that the you know you're on a pennsylvania recognizes a cause for legal malpractise and contract which has a four year statute of limitations that's right you need an expert for breach of contract cases well in legal malpractise moreover pennsylvania requires or certificate of merit before you can file suit for professional jurors pennsylvania contrary to what was stated here today if you look at the complaint which is when he saw me he saw me on july thirtieth if he spoke with me with regard to possible malpractise i told him there was nothing i could do on his behalf and if i may with respect to when the relationship to the representation started they were in fact there is no argument on that whatsoever until they filed their appellate brief therefore the arguments waived which argument that would be the argument as to when the representation started judge remember was under the impression that it started after that date they had  august second two thousand and four that's correct ok why explain for me why the discovery rule cannot apply because you're not saying it should not apply you say you're saying it cannot it cannot apply in this case in order for it to apply there must be evidence of fraud or concealment so let's let's go over what happened the facts of the case mr not victoria the attorneys purportedly told the attorneys to call several witnesses  fight here's what i don't understand if that would mean that for any plane at any time with regard to malpractise the claim would have to look at the moment the attorney and the client had some disagreement right because under the facts as i understand from the conversation between connally and nothing or pradelle actually on the day of the because whatever ok and witness x is not called that would mean in those everywhere around the country that would be the start of any kind of malpractise claims that associated your honor ok not a state of what happened is that they did not discuss who would they she did not discuss with them at the case i'm not going to call this person for x reason she simply did not that is where it was obvious august second two thousand and four and she held that the discovery rule did not apply in current rule control against correct he had two years from august second two thousand and four to file suit he did not do not fraud it's not concealment mr not picked that see for himself that the witnesses that could prove that he disclosed his assets to dolly knoppix were not call even if we could find for under the discovery claim for breach of contract why not on the tour that he just hire me because he said file an average and when he when he retained me know he didn't tell me what to do and  clients don't tell the attorneys what claim to file that's up to the attorney to decide  thought the statute had already passed and i was not going to play i was not going to take a chance cases are very expensive i'm not going to pretend a discovery rule applies when it doesn't there is no exception to be negligent i would have had would preach that my duty there is no duty because of this that as judge rainbow concluded the discovery role does not apply the occurrence of the discovery exception to the occurrence rule does not apply therefore i was not negligent well indeed at that anyway at the time my relationship concluded mr knoppix he still had time to file a claim for him for legal malpractise in contract he chose not to do so do you disagree with mr downey on the proposition that in order for the discovery rule to say there has to be evidence of fraud or concealment yes i do disagree with that fraudulent concealing conceal another way to poll the statue of limitations on under pennsylvania law you have a discovery rule which holds the statue of limitations until such time as a person discovers their injury the cause of their injury and when their injury occurred so you don't different ways to toll the statue of limitations we never lie primarily upon the discovery roll we've also pointed out however that mr cannot that was represented by connally from the date of the hearing through the date of the decision and at least during that time he was assured by by connally that there was no problem that everything that had been handled appropriately fraudulent concealment in pennsylvania does not require actual fraud nor even an intentional concealment even an accidental is the statute of limitations begins the run from the occurrence of the malpractise even if it hasn't had consequences yet and that discovery will won't post on it until it malpractise i don't think the state courts of pennsylvania create any special rules for legal malpractise cases i think these cases tend to be facts this ific that i think the pennsylvania cases are confusing as to the doct  and there is a letter from mr downey to conley's dated october twenty sixth two thousand and six and that letter it says please place your carriers on notice of this potential claim the statute of limitations on this matter and court is july fifth two thousand and seven parentheses the date of judge morris order invalidating the property settlement agreement closed prince's period those are mr downie's own words for when he was representing the pla apparently he has a different view of the statue limitations today but i think at least at that point in time he was seeing the discovery role as being on applicable as well i thank you for your time