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Prisco v. Talty

filed: April 30, 1993; As Corrected May 11, 1993.

ANTHONY J. PRISCO, JR., APPELLANT
v.
DENNIS P. TALTY, INDIVIDUALLY T/A ZEITZ AND TALTY; GLENN A. ZEITZ, ESQ. INDIVIDUALLY T/A ZEITZ AND TALTY



Appeal from the United States District Court for the Eastern District of Pennsylvania. D.C. Civil No. 91-07223

Before: Sloviter, Chief Judge, Becker and Mansmann, Circuit Judges.

Author: Mansmann

Opinion OF THE COURT

MANSMANN, Circuit Judge.

This appeal arises from the dismissal of a legal malpractice action brought by a client who alleged that the negligence of his attorneys caused him to lose a lawsuit he had filed against the United States. In that separate action, Anthony Prisco had alleged that his young daughter Lauren was admitted into the Federal Witness Protection Program and her identity changed without notice to him in violation of his state visitation and custody rights.*fn1 Because Prisco had not filed the prerequisite administrative claim, his Federal Tort Claims Act case was dismissed. Prisco sued his attorneys, alleging that the failure to file the claim was legal malpractice.

Ruling on a motion to dismiss, the district court held that Prisco would not have recovered on his legal malpractice action in any event because, applying the sovereign immunity provision of the Witness Security Reform Act of 1984 retroactively, the United States would have been entitled to sovereign immunity in the original suit. We must decide whether the district court erred in applying the sovereign immunity amendment, which became effective one year after Prisco's cause of action accrued.

Based on well-established standards of statutory construction, we hold that, with one clearly stated exception, the 1984 amendments do not apply to a cause of action which had accrued prior to the effective date of their enactment. Thus, the district court erred in applying the sovereign immunity provision to bar Prisco's claim of legal malpractice. We will thus vacate the order of the district court dismissing Prisco's malpractice suit and will remand to the district court for reinstatement of Prisco's complaint.

I.

We have previously discussed at length the facts underlying Anthony Prisco's dispute with the United States Marshals Service.*fn2 A brief recitation would be helpful here.

After the sudden and unexplained disappearance of his former wife and their daughter Lauren, Anthony Prisco retained Dennis P. Talty, Esquire, to locate Lauren, with whom Prisco had an ongoing parental relationship despite the fact that Lauren resided with her mother.*fn3 Talty's investigation led to the discovery on December 5, 1983, that Lauren had been placed in the Witness Protection Program in September or October of 1983.*fn4

Talty then filed, on behalf of Prisco, a petition to suspend child support, a request for an order for contempt of visitation and for custody of Lauren. At hearings held in the Court of Common Pleas of Philadelphia County, Family Court Division, representatives of the U.S. Marshals Service testified that they had performed a detailed threat assessment before concluding that it was in Lauren's best interest to be admitted into the program.*fn5 Nonetheless, the government agreed to facilitate, and pay the expenses of, monthly visitation between Prisco and Lauren at a "neutral" site and under constant U.S. Marshal supervision.*fn6 Approximately three and one-half months had elapsed between the time Prisco had become aware of his daughter's absence and the time of the hearings.

Talty proceeded to file a complaint pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b), 2671 et seq.,*fn7 on behalf of Prisco against the United States seeing injunctive and declaratory relief and money damages for interference with his state law rights.*fn8 In dismissing the complaint, the district court held that Prisco had failed to comply with the jurisdictional requirements of the FTCA by not filing an administrative claim with the relevant federal agency within the two year period required by the statute of limitations. 28 U.S.C. § 2401(b) (1988).*fn9

Following this dismissal, on November 20, 1991, Prisco filed a malpractice complaint against Talty and his partner, Glenn Zeitz, individually and as the partnership of Zeitz and Talty. Prisco sought compensatory and punitive damages for breach of contract and negligence constituting legal malpractice on the ground that Talty failed to file a timely administrative claim on his behalf, which would have been within two years after the date upon which he and counsel first learned that Lauren had been admitted into the Witness Protection Program.

The district court dismissed Prisco's case pursuant to Fed. R. Civ. P. 12(b)(6) in a Memorandum and Order dated June 23, 1992, holding that even if Prisco's counsel was negligent, Prisco's FTCA claim was barred by retrospective application of the sovereign immunity provision of the Witness Security Reform Act of 1984, a matter the court found to be supported by clear congressional intent. In response to Prisco's motion to reconsider, the court reaffirmed its prior decision, stressing that "it was an act of Congress, not his ...


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