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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.

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 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 

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA
J-A07035-23

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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.

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 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, 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.
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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).
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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.
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[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.
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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.
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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

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11 The class action also claimed AMC illegally conspired with non-cooperatives 

to fix prices. Antitrust Litig., 621 F.Supp.2d at 283.
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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 

____________________________________________

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 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.
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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.
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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 
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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.
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“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 
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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 
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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. . . . ”).
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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 
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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.
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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 
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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”).
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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, 
J-A07035-23

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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