Thomas Olick v.

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 19-2280
__________
IN RE: THOMAS W. OLICK,
Debtor
THOMAS W. OLICK,
Appellant
v.
WILLIAM C. HOUSE
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 5:17-cv-01610)
District Judge: Honorable Jeffrey L. Schmehl
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
October 9, 2020
Before: SHWARTZ, RESTREPO, and GREENBERG, Circuit Judges
(Opinion filed: October 13, 2020)
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OPINION*
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*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
PER CURIAM
Thomas W. Olick, proceeding pro se, appeals from an order of the United States
District Court for the Eastern District of Pennsylvania affirming an order of the United
States Bankruptcy Court, which granted the defendant’s motion for summary judgment.
For the reasons that follow, we will affirm.
Because the parties are familiar with the background of this case, which is
thoroughly recited in the Bankruptcy Court’s Memorandum, we will revisit the facts only
briefly. On March 3, 2003, Olick filed his third adversary complaint in Bankruptcy Court
against William C. House, who had earlier represented Olick in bankruptcy and
arbitration proceedings. In that complaint, Olick alleged breach of contract, fraud,
negligence and malpractice, and breach of fiduciary duty. On January 28, 2010, the
Bankruptcy Court dismissed that adversary proceeding, identified as “House III,” for lack
of subject matter jurisdiction because the administration of the underlying bankruptcy
case was complete. Olick did not seek review of that dismissal.
Instead, on February 4, 2010, Olick filed in a separate bankruptcy case another
adversary complaint, identified as “House IV,” that was nearly identical to the one filed
in House III. House filed a motion to dismiss, arguing, among other things, that Olick’s
claims were barred by res judicata and the applicable statutes of limitation. The
Bankruptcy Court granted that motion, agreeing that Olick’s claims were barred by res
judicata because they had been raised, or could have been raised, in an adversary
2
proceeding that Olick had initiated in 1999. In re Olick, 2011 WL 2565665 (Bankr. E.D.
Pa. June 28, 2011). On appeal, the District Court affirmed in part and reversed in part,
concluding that Olick’s breach of contract and negligence/malpractice claims—insofar as
they pertained to certain defendants in the arbitration proceedings—should not have been
dismissed on res judicata grounds. In re Olick, 2012 WL 6592208, at *10 (E.D. Pa. Dec.
18, 2012).1 The District Court considered the applicable statutes of limitations as a
potential alternative basis for dismissal but noted that it could not determine when the
surviving claims accrued. Id. at 8.
Following remand to the Bankruptcy Court, House filed a motion for summary
judgment, alleging, in part, that Olick’s claims were barred by the applicable statutes of
limitations. The Bankruptcy Court granted that motion, holding that Olick did not show
the existence of competent evidence supporting each element of his claims and,
alternatively, that his claims were barred by the applicable statutes of limitations. In re
1
The District Court agreed, however, that Olick’s claims based on House’s
representation in the bankruptcy proceeding were barred by res judicata. Olick, 2012 WL
6592208, at *4. In addition, to the extent that Olick challenged House’s representation in
the arbitration proceedings against a group known as the Hancock parties, the District
Court concluded that Olick’s claims were time-barred. Id. at *6-7. Olick does not
challenge these determinations on appeal. See Kost v. Kozakiewicz, 1 F.3d 176, 182 (3d
Cir. 1993) (stating that arguments that are not raised on appeal are generally deemed
waived).
3
Olick, 565 B.R. 767 (Bankr. E.D. Pa. 2017). On appeal, the District Court affirmed
solely on the basis that Olick’s claims were time-barred. Olick timely appealed.2
We have jurisdiction pursuant to 28 U.S.C. § 158(d)(1). “In reviewing a summary
judgment decision of the Bankruptcy Court, we apply, as did the District Court, a plenary
standard to legal issues.” In re Tops Appliance City, Inc., 372 F.3d 510, 513 (3d Cir.
2004).
State law supplies the statute of limitations and tolling principles applicable to
Olick’s legal malpractice and breach of contract claims. See In re Mushroom Transp.
Co., Inc., 382 F.3d 325, 335-36 (3d Cir. 2004).3 Pennsylvania imposes a two-year statute
of limitations on tortious conduct, including legal malpractice actions, 42 Pa. C.S.A.
§ 5524, and a four-year statute of limitations for breach of contract claims, 42 Pa. C.S.A.
5525(a). Generally, the statute of limitations on those actions begins to run upon the
occurrence of the alleged breach of duty. Wachovia Bank, N.A. v. Ferretti, 935 A.2d
565, 572-74 (Pa. Super. Ct. 2007).
2
Olick also filed a motion for reconsideration. The District Court denied that motion,
and Olick did not amend his notice of appeal or file a new notice of appeal. Therefore,
we lack jurisdiction over the denial of the motion for reconsideration. See Fed. R. App.
P. 4(a)(4)(B); Carrascosa v. McGuire, 520 F.3d 249, 253 (3d Cir. 2008).
3
As in Mushroom Transportation, there is no indication here that borrowing
Pennsylvania’s tolling principles frustrates any federal policy or objective. See 382 F.3d
at 335-36.
4
Here, the Bankruptcy Court concluded that Olick’s surviving claims against House
accrued, at the latest, on July 20, 2001, the date on which the arbitration proceedings
concluded, because “it is plausible that Olick was not aware that he had suffered any
cognizable damage” until that time. Olick, 565 B.R. at 792; see also Knopick v.
Connelly, 639 F.3d 600, 614 (3d Cir. 2011) (applying Pennsylvania’s discovery rule to a
legal malpractice claim). Olick does not argue for application of that accrual date. See
Kost, 1 F.3d at 182 (3d Cir. 1993). Instead, Olick asserts that the statute of limitations
did not begin to run until 2004, when we rejected an appeal of the District Court’s order
confirming the award issued by the arbitration panel. As part of this argument, Olick
alleges that the Bankruptcy Court had advised him in 1999 that his claims against House
would not ripen until any arbitration award became final through the conclusion of all
appeals. But even assuming that the applicable two- and four-year statutes of limitations
began to run in 2004, as Olick suggests, his claims are untimely because he did not
initiate House IV until 2010.
Alternatively, Olick argues that the statute of limitations should be tolled until
June 5, 2014, because, until that date, House had “conceal[ed]” evidence that should have
been produced in discovery. See Lake v. Arnold, 232 F.3d 360, 367-68 (3d Cir. 2000)
(recognizing that Pennsylvania’s equitable estoppel doctrine can toll the statute of
limitations when a defendant intentionally misinforms or conceals information from a
plaintiff). Olick, however, does not identify that evidence or explain how its alleged
5
withholding prevented him from discovering an injury.4 See Fine v. Checcio, 870 A.2d
850, 860 (Pa. 2005) (stating that the “plaintiff has the burden of proving fraudulent
concealment by clear, precise, and convincing evidence”). Olick does not otherwise
argue that he was affirmatively misled regarding the statute of limitations or that some
extraordinary circumstance prevented him from timely asserting his claims.
As the District Court correctly explained, the only way that House IV could be
considered timely filed is if Pennsylvania’s “savings statute” applies. That statute, 42 Pa.
C.S.A. § 5535(a), provides that “if a civil action or proceeding is timely commenced and
is terminated [for a reason other than a voluntary nonsuit, a discontinuance, a dismissal
for neglect to prosecute, or a final judgment on the merits], a party … may … commence
a new action or proceeding upon the same cause of action within one year of the
4
On January 14, 2016, Olick filed in the Bankruptcy Court a motion to amend the
adversary complaint, apparently based on documents produced by House in 2014. The
Bankruptcy Court denied that motion. To the extent that Olick seeks to challenge the
Bankruptcy Court’s denial, his claim has been waived because he did not raise it on
appeal to the District Court. See In re Tribune Media Co., 902 F.3d 384, 397 (3d Cir.
2018) (stating that a person appealing a bankruptcy court’s adverse order waives
appellate arguments in the court of appeals by failing to raise those arguments in his
appeal to the district court). In any event, as the Bankruptcy Court noted, Olick did “not
seek to amend for the purpose of adding parties or claims and it is unnecessary to
effectuate an amendment for purposes of detailing more evidence that might be
introduced at trial to support an already pled claim.” See In re Madera, 586 F.3d 228,
234 (3d Cir. 2009) (stating that a court may deny leave to amend where amendment
would be futile).
6
termination ….”5 Here, Olick commenced House III in March 2003, but that action was
dismissed for lack of jurisdiction. One week later, Olick filed House IV, which contained
claims nearly identical to those in House III. If the savings statute applied, then Olick’s
claims would be timely because House IV was filed within one year of the dismissal for
lack of jurisdiction of House III. In a precedential opinion, we have predicted, however,
that the Pennsylvania courts would not extend § 5535(a) to actions filed in federal court,
and we see nothing in more recent state case law that would undermine that prediction.
See Jewelcor Inc. v. Karfunkel, 517 F.3d 672, 675-76 (3d Cir. 2008). Because Olick
commenced House III by filing an adversary complaint in Bankruptcy Court, the savings
statute does not preserve the claims raised within that action. See In re DMW Marine,
LLC, 509 B.R. 497, 510 n.21 (Bankr. E.D. Pa. 2014) (explaining that adversary
proceeding in Bankruptcy Court would not toll statute of limitations because § 5535(a)
does not apply to actions first commenced in federal court). Accordingly, the claims
raised in House IV, which was filed in February 2010, are untimely, even if they accrued,
as Olick alleges, in 2004.
For the foregoing reasons, we will affirm the judgment of the District Court.
5
The statute does not apply to an “action to recover damages for injury to the person or
for the death of an individual caused by the wrongful act or neglect or unlawful violence
or negligence of another.” § 5535(a)(2)(i). Olick’s adversary claims against House do
not fall under this exception.
7