J

- A07035

- 23

NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
AMERICAN MUSHROOM COOPERATIVE, F/D/B/A EASTERN 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 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. : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1780 EDA 2022

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 COOPERATIVE, F/D/B/A EASTERN MUSHROOM MARKETING COOPERATIVE, INC, MONTEREY MUSHROOMS, INC., GIORGI MUSHROOM CO., GIORGIO FOODS, INC., JOHN PIA, BELLA MUSHROOM : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIAJ

- A07035

- 23

- 2

-

FARMS, BROWNSTONE MUSHROOM FARMERS, INC., TO

- JO FRESH 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. : : : : : : : : : : : : : : : : : : : : : : : No. 1783 EDA 2022

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, Appellant s ), 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.J

- A07035

- 23

- 3

-

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 T he trial court found Appellants ’ tort an d
contract claims were barred by the statutes of limitations

. 3 On appeal, Appellants aver s the trial court erred in: (1) not grant ing their requests to amend their pleadings in order to address an email exchange, which would
show Appellee ’ s deception and thus invoke equitable tolling doctrine s ; and (2) finding the ir claims were time

- barred , in part by considering exhibits improperly attached to Appellee ’ s motion for judgment on the pleadings. W e 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, 12/2 1 / 20.
A lthough 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, 41 9 (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).J

- A07035

- 23

- 4

- 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 pri ces [,] which is otherwise prohibited by the Sherman Antitrust Act

. [ 5 ]

. . . [T]he Capper

- Volstead Act allows fa rm ers 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, 4/2 4 /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 represent ing and a dvis ing AMC at its
formation.
O ne 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

“ account ed 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

.J

- A07035

- 23

- 5

-

[AMC], when they were not mushroom ‘ growers ’ as required under [t he strict prerequisites 6 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 summariz e that Appellee advised Appellants during their 2001

- 2002 purchase s or lease s 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 antit rust 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.J

- A07035

- 23

- 6

-

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 agree d to nullify the deed restrictions and

“ reverse and dismantle the Suppl y Control Program. ” See Trial Ct. Op. at 3

- 4 ; Appellants ’ Complaint at ¶ 52

. Final judgment in this DOJ matter was entered on Septe mber 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.
W hile a subsequent federal court opinion stated the investigation was 18 months long, Antitrust Litig. , 621 F.Supp.2d at 280, Appellee’s new matter suggest ed the investigation lasted 20 months. See Answer with New Matter at 61 , 64 (st ating 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.J

- A07035

- 23

- 7

-

Eastern District of Pennsylvania. 11 Trial Ct. Op. at 4. On March 26, 2009, t he 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
settle ments 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 ti me period , beginning that same day, shall not be included in calculating statute s of limitations. Tolling Agreement, 5/7/09, at 1, Exh. B to Appellants ’ Complaint.
I I. 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.J

- A07035

- 23

- 8

-

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 advis ed the Supply Control Program would be permissible under th e 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 statute s of limitations. 14 Appellee ’ s Answer with New Matter at 42. Appellee further contended the

_________________ __________ ______ ____ _______
12 One 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 c omplaint averred Berger Montague “ repeatedly assured ” th em their claims against Appellee would be protect ed 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

.J

- A07035

- 23

- 9

-

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 fil ed , respectively, more than two and four
years earlier. Id. at 42, 68. Next, o n August 16, 2021, Appellee filed the underlying motion for judgment on the pleadings, reiterating its statutes of limitations defense. Appellants filed answer s and memoranda in support, both contending , inter
alia , that while their answers were sufficien t to defeat Appellee ’ s motion, they
were also request ing , 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 O pposition 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 an swer 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 AM C ’ s possession.J

- A07035

- 23

- 10

-

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
Mot ion for Judgment on the Pleadings of Appellee (emphasis added) . On that same day, a n 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. Appe llants 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 g ranted 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 Ap pellee 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 grantedJ

- A07035

- 23

- 11

-

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 ’ argu ment 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 [Appel lee ’ 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 absen t 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 revie w: Entry of judgment on the pleadings is permitted under Pennsylvania Rule of Civil Procedure 1 034, 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.J

- A07035

- 23

- 12

-

“ 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 sta ndard 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 p resented 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 th at 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.
Comm unicatio ns 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 runsJ

- A07035

- 23

- 13

-

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 perso ns 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 rea sonable 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, “ t hrough 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 fra ud orJ

- A07035

- 23

- 14

- 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 concealmen t, 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 the ir first issue, Appellants assert the trial court erred in not gran t ing
their “ repeated request s to amend their plead i ng s
. ” 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 9 9.9% 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 f or 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.

. . . ” )

.J

- A07035

- 23

- 15

-

caused [ A ppellants] 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 wheth er, 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 th ese question s of fact were for th e 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 M embership 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 a ny particular date or occurrence on which they believe the statutes
of limitations should begin to run. Instead, the y 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)

. T he court foundJ

- A07035

- 23

- 16

-

that a t 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 o ut AMC “ necessarily incurred costs and attorneys ’ fees in
connection with the [ D O J ] investigation and the invalidation o f 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 reje cted Appellants ’ arguments concerning Attorney Finio ’ s email as “ puffery , ” reasoning Ap p ellants “ cannot overcome the cold hard fact that [AMC] consented to a public judgment that overturned the entire Supply Control Program, which ” Appellants acknowledge t hey 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 c ourt reasoned, Appellants could not wait until their injuries bec a me “ 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

.J

- A07035

- 23

- 17

-

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 th e DOJ ’ s proposal
follow ed 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, Appell ants

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 Appell ants ’ 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, w e agree with AppelleeJ

- A07035

- 23

- 18

-

that Appellants cannot now claim that in 2007, they lacked “ sufficient critical facts to put [them] on notice ” o f 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 co urt properly concluded there

were no d i sputed issues of fact and Appellee was entitled to judgment as a
mat t er 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 re lied 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 pro vide
certain documents and answer interrogatories , and the accompany ing cover letter from the DOJ ; ( 2 ) a March 7, 2001, email from Attorney Finio, which
stated “‘ there will likely not be any firm prece dents ’ 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 admitte d ” ).J

- A07035

- 23

- 19

-

covenants ” and thus purportedly showed Appellee ’ s uncertainty in their legal
advice ; and ( 3 ) March 23, 2001, email s 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, the ir admissions in their pleadings tended to show they were not

aware , due to Ap pellee ’ 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 (citati on 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 investigatio n, that put Appellants on notice of a potential injury caused by A ppellee ’ 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, i s not persuasive. T he 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,J

- A07035

- 23

- 20

-

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 th e face of a proposed settlement by the DOJ that required Appellants to nullify the deed restrictions , led Appellants to believe
the ir 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 Appell ee ’ 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