Filed: Feb. 27, 2013
Latest Update: Feb. 12, 2020
Summary: GLD-133 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 12-3934 _ EUFROSINA DIACONU, Appellant v. SKYLINE TRANSPORTATION; JAMES E. COLLINS; WILSON, ELSER, MOSKOWITZ EDELMAN & DICKER LLP; DEFENSE LOGISTICS AGENCY _ On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil No. 12-cv-00663) District Judge: Honorable J. Curtis Joyner _ Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or Summary Action Pursua
Summary: GLD-133 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 12-3934 _ EUFROSINA DIACONU, Appellant v. SKYLINE TRANSPORTATION; JAMES E. COLLINS; WILSON, ELSER, MOSKOWITZ EDELMAN & DICKER LLP; DEFENSE LOGISTICS AGENCY _ On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil No. 12-cv-00663) District Judge: Honorable J. Curtis Joyner _ Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or Summary Action Pursuan..
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GLD-133 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 12-3934
_____________
EUFROSINA DIACONU,
Appellant
v.
SKYLINE TRANSPORTATION; JAMES E. COLLINS;
WILSON, ELSER, MOSKOWITZ EDELMAN & DICKER LLP;
DEFENSE LOGISTICS AGENCY
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 12-cv-00663)
District Judge: Honorable J. Curtis Joyner
____________________________________
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
February 22, 2013
Before: FUENTES, FISHER and GREENBERG, Circuit Judges
(Opinion filed: February 27, 2013)
_________
OPINION
_________
PER CURIAM
Eufrosina Diaconu appeals from a number of orders entered by the United States
District Court for the Eastern District of Pennsylvania. We grant her application to
proceed in forma pauperis.1 We will summarily affirm the District Court’s orders, as the
appeal presents no substantial question. L.A.R. 27.4; I.O.P. 10.6.
As the procedural history of this case and the details of Diaconu’s claims are well
known to the parties, we need not discuss them at length. Diaconu filed a complaint in
the Court of Common Pleas of Philadelphia County. One of the defendants, Defense
Logistics Agency, removed the case to federal court pursuant to 28 U.S.C. § 2679. The
District Court granted defendant Skyline Transportation’s motion to dismiss, granted
defendant Wilson, Elser, Moskowitz, Edelman & Dicker’s (“Wilson Elser”) motion to
dismiss (and denied their motion for a more definite statement), and granted defendant
Defense Logistics Agency’s (“DLA”) Motion to Dismiss All Claims Against the Federal
Defendant After Substituting the United States for Its Agency. The District Court also
denied all remaining motions as moot.
We have jurisdiction under 28 U.S.C. § 1291, and our review of an order granting
a motion to dismiss is plenary. Phillips v. County of Allegheny, 515 F.3d 224, 230 (3d
Cir. 2008). The District Court’s September 18, 2012 memorandum provides a
comprehensive analysis, which we will supplement only as follows.
First, the District Court, pursuant to Eastern District of Pennsylvania Local Rule of
Civil Procedure 7.1(c), properly granted defendant Skyline Transportation’s motion to
1
The District Court denied Diaconu’s application to proceed in forma pauperis on
appeal as she had not provided the appropriate documentation. She has now provided us
with such documentation, and has demonstrated the inability to pay the fees on appeal.
See Walker v. People Express Airlines, Inc., 886 F.2d 598, 601 (3d Cir. 1989).
2
dismiss as unopposed. See DiPaolo v. Moran, 407 F.3d 140, 145 (3d Cir. 2005) (where
plaintiff failed to answer Rule 11 sanctions motion, district court and our court were
authorized to consider plaintiff’s arguments waived). However, we also agree with the
District Court’s alternative holding, that Diaconu’s state-law claims against Skyline
Transportation are time-barred. Diaconu’s complaint alleged injuries stemming from a
motor vehicle accident in 2005. As the District Court noted, even if one construed her
complaint as alleging that she did not discover2 some of her injuries until the date of her
surgery in March 2008, her complaint, filed originally in January 2012, was not filed
within two years of that later date. See 42 Pa. Cons. Stat. § 5524(2) (setting forth two-
year period of limitations for personal injury claims); 42 Pa. Cons. Stat. § 5521(b) (for
claim accruing outside of Pennsylvania, Pennsylvania’s statute of limitations applies if it
is shorter than the statute of limitations of the place where the claim accrued).3
Second, the District Court properly granted Wilson Elser’s motion to dismiss.
Diaconu’s allegations against Wilson Elser border on the frivolous. The firm represented
Skyline Transportation and the truck driver in a lawsuit that Diaconu brought against
those defendants in New York. To the extent the “Malpractice” caption on Diaconu’s
2
In Pennsylvania, “where the complaining party is reasonably unaware that his or
her injury has been caused by another party’s conduct, the discovery rule suspends, or
tolls, the running of the statute of limitations.” Gleason v. Borough of Moosic, 15 A.3d
479, 484 (Pa. 2011).
3
The accident here occurred in New York. Even if New York’s three-year period
of limitations applied, see N.Y. C.P.L.R. 214 (McKinney 2013), the claims would be
time-barred.
3
complaint here referred to Wilson Elser, the District Court properly noted that a legal
malpractice claim is only available where there is an attorney-client relationship. See,
e.g., Post v. St. Paul Travelers Ins. Co., 691 F.3d 500, 521 (3d Cir. 2012) (under
Pennsylvania law, legal malpractice claim requires allegation of attorney-client
relationship). As for Diaconu’s fraud claims against the firm, the District Court properly
noted that they were for the most part vague or conclusory. 4 The District Court
generously construed Diaconu’s complaint along with her response to Wilson Elser’s
motion to dismiss, and found that she had provided enough specific details so that it
could rule on one claim of fraud: she claimed that Wilson Elser forged the signature of
Judge Smith on a document dated June 15, 2010. The Court concluded that Diaconu
failed to plead any factual basis for her belief that the signature was forged, and, in any
event, she failed to plead facts that would indicate that she was injured by the alleged
forgery.
Third, the District Court properly granted Defense Logistics Agency’s Motion to
Dismiss. As the Court noted, two previous court decisions found that Diaconu’s claims
against the Government for injuries she allegedly received from working for Defense
Logistics Agency were barred. Eufrosina Diaconu v. Def. Logistics Agency, No. 98-
6533, 1999 WL 238954 (E.D. Pa. April 2, 1999) (work injury claims against DLA time-
barred), aff’d, 33 F. App’x 647 (3d Cir. April 16, 2002); Eufrosina Diaconu v. Gates,
4
For example, she alleged the firm engaged in “tricks-of-the-trade maneuvers,”
“manipulations, and “lying.”
4
No. 08-3633, 2009 WL 4122728, at *1 (E.D. Pa. Nov. 24, 2009) (lawsuit raising claims
based on recently-discovered cancer barred as covered by Federal Employees’
Compensation Act), aff’d, 10-1912,
2010 WL 3394270, at *2-*3 (3d Cir. Aug. 30, 2010).
We also agree that to the extent Diaconu was raising an unadjudicated claim that certain
spinal problems caused by exposure to toxic chemicals while working at the DLA were
only discovered5 because of the 2005 motor vehicle accident, those claims were barred by
the two-year statute of limitations under the Federal Tort Claims Act. 28 U.S.C.
§ 2401(b).6
For the foregoing reasons, having granted Diaconu’s motion for leave to proceed
in forma pauperis, we will affirm the District Court’s judgment and orders. Diaconu’s
motion for appointment of counsel is denied.
5
A claim under the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680, does not
accrue until an objectively reasonable person using due diligence should have known of
both the fact of the injury and its cause. Hughes v. United States, 263 F.3d 272, 275 (3d
Cir. 2001).
6
Because the District Court properly dismissed all claims against all defendants,
the Court also was correct to deny all outstanding motions as moot.
5
