Clark, D. v. Stover, J.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
DAVID CLARK, INDIVIDUALLY, AND : IN THE SUPERIOR COURT OF
AS ADMINISTRATOR OF THE ESTATE : PENNSYLVANIA
OF MONICA CLARK, DECEASED
Appellants
v.
: No. 1474 MDA 2018
JEFFREY STOVER, ESQUIRE AND
STOVER, MCLAUGHLIN, GERACE,
WEYANDT & MCCORMICK, P.C.
Appeal from the Order Entered August 10, 2018
In the Court of Common Pleas of Huntingdon County Civil Division at
No(s): 2015-1380
BEFORE: LAZARUS, J., MURRAY, J., and STEVENS*, P.J.E.
MEMORANDUM BY STEVENS, P.J.E.: FILED AUGUST 01, 2019
David Clark and his mother, Monica Clark, ("collectively the Clarks")
appeal from the August 10, 2018, order entered in the Court of Common Pleas
of Huntingdon County granting the motion for summary judgment in favor of
Jeffery Stover, Esquire, and his law firm, Stover, McLaughlin, Gerace,
Weyandt & McCormick, P.C. (collectively "Appellees").1 After a careful review,
we affirm.
1 This appeal was filed by David Clark and Monica Clark. However, on January
24, 2019, during the pendency of this appeal, Monica Clark passed away and
the Huntingdon County Register of Wills ("Register of Wills") granted Letters
Testamentary to David Clark. Thereafter, Appellees filed an application
Former Justice specially assigned to the Superior Court.
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The relevant facts and procedural history are as follows: On July 14,
2008, Daniel M. Clark ("Decedent") passed away, and he was survived by four
siblings, including David Clark, as well as his mother, Monica Clark. On
February 6, 2008, Decedent executed a Last Will and Testament ("the Will")
bequeathing to Leslie A. McDermott, who was a long-time employee of
Decedent, the following: his personal belongings, a sum of $150,000.00, his
accounting business, an option to purchase his office and apartment building,
and his interest in CMS Computer Services. Further, the Will bequeathed the
sum of $25,000.00 to Christina M. Reynolds, as well as the sum of $25,000.00
to Randi I. Beatty, both of whom were employees of Decedent. The Will
provided that the remainder of Decedent's Estate was to be distributed equally
to the Humane Society of Huntingdon County and the Retirement Assistant
Care for Equines Fund ("R.A.C.E. Fund"). Decedent made no provision for his
family in the Will. Decedent appointed the following individuals as Co -
Executors of the Will: Edson S. Crafts, III, Leslie A. McDermott, and Lawrence
seeking to strike the Clarks' brief on the basis Monica Clark is no longer a
proper party to the appeal. However, David Clark, in his capacity as personal
representative of Monica Clark's Estate, filed an application with this Court
seeking to be substituted as a party. Accordingly, we deny Appellees'
application to strike and grant the application for substitution of a party. See
Pa.R.A.P. 502(a)("If a party dies after a notice of appeal or petition for review
is filed or while a matter is otherwise pending in an appellate court, the
personal representative of the deceased party may be substituted as a party
on application filed by the representative or by any party with the
prothonotary of the appellate court."). We have amended the caption
accordingly.
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L. Newton. Thereafter, Lawrence L. Newton renounced his right to serve as
Co -Executor and, thus, the Register of Wills granted Letters Testamentary to
Edson S. Crafts, III, and Leslie A. McDermott and admitted to probate the Will
on August 4, 2008.
Thereafter, in September of 2008, David Clark retained Attorney Stover,
and on October 17, 2008, he filed a caveat objecting to the Register of Wills'
granting of Letters Testamentary and Probate. Specifically, David Clark
averred Decedent had executed prior Wills, including one on November 12,
2007, that had named him as a beneficiary. He also averred he had been
named as the beneficiary on several of Decedent's life insurance policies, but
that Decedent changed the life insurance beneficiary designations in
November of 2007. David Clark averred Decedent executed the February 6,
2008, Will and changed the life insurance beneficiary designations in 2007
because of the undue influence of Leslie A. McDermott.
Pursuant to 20 Pa.C.S. § 907, David Clark filed for certification to the
Orphans' Court. Following hearings on August 5, 2009, and September 3,
2009, the Orphans' Court dismissed David Clark's claims on November 17,
2009. David Clark filed an appeal to this Court, and we affirmed on May 19,
2011.2 In re: Daniel M. Clark, 988 MDA 2010 (Pa.Super. filed 5/19/11)
2 On appeal, David Clark claimed the Orphans' Court erred in rejecting his
argument that Leslie A. McDermott exerted undue influence and/or Decedent
was of a weakened intellect when he executed the Will in February 6, 2008;
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(unpublished memorandum). David Clark filed a petition for allowance of
appeal, which our Supreme Court denied on June 8, 2012.
Meanwhile, on July 13, 2010, Monica Clark, who was also represented
by Attorney Stover, filed an action against Decedent's Estate3 alleging that,
prior to his death, Decedent converted life insurance benefits, as well as
tangible personal and business property of Robert Clark,4 who predeceased
Decedent on November 6, 2003. Monica Clark averred the benefits and
property lawfully belonged to her, and that, prior to his death, Decedent made
misrepresentations indicating he would invest her share of Robert Clark's
Estate on her behalf.5 Decedent's Co -Executors filed a motion for summary
judgment averring, inter a/ia, that Monica Clark failed to file her conversion
lawsuit within the applicable two years statute of limitations. In December of
the Orphans' Court erred in discounting the testimony of his expert, John
DeCarle; and the Orphans' Court erred in rejecting his argument that
Decedent's change of beneficiary on his life insurance policy was not the
product of undue influence.
3 further discussed infra, the Clarks averred that Monica Clark also met
As
with Attorney Stover in September of 2008; however, upon Attorney Stover's
recommendation, Monica Clark was not named as a party in the 2008 lawsuit
filed by David Clark against Decedent's Estate, and instead, Monica Clark filed
her own lawsuit on July 13, 2010.
4 Robert Clark was Decedent's father, as well as Monica Clark's husband.
5 Monica Clark averred she and Decedent were appointed as Co -Executors of
Robert Clark's Estate. She further averred that Robert Clark had three life
insurance policies: a $1,000,000.00 policy owned by Decedent and two
$250,000.00 policies for which Monica Clark was named as the sole
beneficiary.
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2013, the Orphans' Court granted the motion for summary judgment and
dismissed Monica Clark's complaint with prejudice. Monica Clark did not file
an appeal from the Orphans' Court's order.
On October 1, 2015, the Clarks instituted the instant case against
Appellees via a praecipe for a writ of summons. On November 5, 2015, the
Clarks filed a civil complaint, which they amended on December 14, 2015, and
again on January 15, 2016, in response to Appellees' preliminary objections.
The Clarks' second amended complaint presented claims as to both David
Clark and Monica Clark regarding legal malpractice negligence, legal
malpractice breach of contract, and third -party beneficiary. In support of their
claims, the Clarks relevantly averred the following:
7. Around September 2008, [Appellant], David Clark, retained
[Appellee], Jeffrey Stover, Esquire[,] towards bringing an action
alleging that [Decedent] suffered from undue influence during the
execution of his will. Huntingdon County Orphans' Court Division,
Docket No. 10-1017. David Clark had a verbal agreement for legal
services with [Attorney] Stover and initially paid [Attorney] Stover
approximately $25,000 (David Clark and Monica Clark each
contributed about half of this amount).
8. [Attorney] Stover advised David Clark that [Appellant], Monica
Clark, should not be a [p]laintiff in the underlying [will contest]
matter because[,] if the lawsuit [was] unsuccessful, Monica
[Clark] would be precluded from bringing a subsequent lawsuit for
misrepresentation and conversion.
9. But for [Attorney] Stover's advice (and failure to protect
[Monica Clark's] underlying rights and to provide accurate
material or facts upon which [the Clarks'] decisions were made),
[the Clarks] would not have agreed to exclude Monica Clark as a
[p]laintiff at that time.
10. [Attorney] Stover also advised David Clark that there was a
viable claim against MetLife Insurance regarding [Decedent's] life
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insurance policies; however, [Attorney] Stover never pursued this
claim -despite promises otherwise.
11. At trial, [Attorney] Stover called Dr. John DeCarle, a board
certified psychiatrist[,] to testify regarding the physical impact
alcoholism had on [Decedent's] mind.
12. Upon information and belief, DeCarle had no previous
experience as an expert witness.
13. Further, DeCarle testified that this was the only evaluation
during his career where he did not meet with the subject. The
Commonwealth (which was a party to the matter because
charitable organizations were named as beneficiaries in
[Decedent's] last will and testament) submitted both a motion to
preclude the testimony of Decarle and a motion to severely
discount the testimony of DeCarle.
14. The Honorable Daniel J. Milliron found DeCarle's [testimony]
should be severely discounted because he never personally
examined [Decedent].
15. Consequently, on or about November 10, 2009, Judge Milliron
held that David Clark did not meet the burden of clear and
convincing evidence to find [Decedent] was of weakened intellect.
16. Notwithstanding, [Attorney] Stover advised David Clark to
appeal and said that the [Orphans' Court's] decision would be
reversed. [Attorney] Stover told [David Clark] that "he would still
get something out of (the case)."
17. David Clark relied on [Attorney] Stover's false assurances and
appealed [his] case to the Pennsylvania Superior Court. David
Clark lost his appeal on or about June 20, 2011.
18 Upon [Attorney] Stover's continued advice and false
assurances, David Clark appealed to the Pennsylvania Supreme
Court -which declined to hear the case on or about May 16, 2012.
19. [The Clarks] paid [Attorney] Stover a total of approximately
$50,000 and gave Monica Clark's diamond ring and diamond wrist
watch to [Attorney] Stover to litigate t[he] [will contest] case.
20. [Appellant], Monica Clark[,] then retained [Appellees] towards
bringing a second action alleging that [Decedent] converted life
insurance benefits and tangible personal and business property of
Robert Clark, which lawfully belonged to her. Additionally, Monica
Clark alleged [Decedent] made misrepresentations that he would
invest Monica Clark's share of Robert Clark's Estate of her behalf.
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21. Monica Clark had a verbal agreement for legal services with
[Attorney] Stover and initially paid [Attorney] Stover
approximately $10,000.
22. Judge Milliron presided over the second action.
23. Knowing Judge Milliron was hostile to [Appellants] and had
decided against David Clark in the first action, [Appellants] asked
that [Attorney] Stover request Judge Milliron recuse himself.
[Attorney] Stover failed to do so.
24. Defendants, [Co -]Executors of the Estate of [Decedent], filed
a Motion for Summary Judgment.
25. On or about December 17, 2013, Judge Milliron granted
Defendants' Motion for Summary Judgment.
26. Of particular note was Judge Milliron's finding that [Attorney]
Stover failed to file Monica Clark's lawsuit within the applicable
two (2) year statute of limitations period.
27. As a result of the aforesaid, [Appellees] caused [the Clarks]
to suffer great monetary expense and emotional distress.
The Clarks' Second Amended Complaint, filed 1/15/16, at III 7-27.
On February 1, 2016, Appellees filed another set of preliminary
objections, which the trial court granted, in part, and denied, in part.
Specifically, the trial court dismissed Monica Clark's legal malpractice breach
of contract and third -party beneficiary claims. On February 27, 2017,
Appellees filed an answer with new matter to the Clarks' second amended
complaint. Therein, Appellees contended as new matter, inter a/ia, that all
claims asserted by the Clarks are barred by the statute of limitations. On
March 13, 2017, the Clarks filed a reply to the new matter.
Following discovery, on May 7, 2018, Appellees filed a motion for
summary judgment, along with a supporting brief, seeking judgment in their
favor as to the remaining claims: David Clark's and Monica Clark's legal
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malpractice negligence claims, David Clark's legal malpractice breach of
contract claim, and David Clark's third -party beneficiary claim. Therein,
Appellees averred the Clarks' claims are barred by the statute of limitations
and, even if the claims were timely asserted, the Clarks failed to produce
evidence establishing a prima facie case such that Appellees are entitled to
summary judgment as a matter of law.
On June 15, 2018, the Clarks filed a response in opposition to Appellees'
motion for summary judgment, along with a supporting brief. Therein, the
Clarks averred that, under the equitable discovery rule, they did not file their
action beyond the statute of limitations, and, additionally, the statute of
limitations was tolled by Appellees' concealment of the facts forming the basis
of the Clarks' claims. Moreover, they asserted they set forth ample evidence
establishing a prima facie case as to the claims.
On June 27, 2018, Appellees filed a reply brief in continued support of
their motion for summary judgment, and on July 5, 2018, the Clarks filed a
sur-reply in opposition to Appellees' motion for summary judgment. Following
oral argument, by opinion and order entered on August 10, 2018, the trial
court granted Appellees' motion for summary judgment and dismissed the
remaining claims in the Clarks' complaint with prejudice.
Specifically, as to David Clark, the trial court determined that his action
against Appellees was barred by the statute of limitations. See Trial Court
Opinion, filed 8/10/18, at 5-6. With regard to Monica Clark, the trial court
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initially determined that Monica Clark did not set forth a prima facie case for
her legal malpractice negligence claim against Appellees. See id. at 6. That
is, the trial court determined the statute of limitations as to Monica Clark's
underlying conversion claims against the Decedent expired in February of
2007, and since "the earliest possible date that Monica Clark engaged Attorney
Stover was in September 2008[,]"6 she could not demonstrate that she would
have prevailed on her underlying claim absent any breach of duty on behalf
of Attorney Stover. Id. Additionally, the trial court concluded that, to the
extent Monica Clark averred Attorney Stover breached his duty by failing to
name her as a party in the lawsuit brought by David Clark against Decedent's
Estate, Monica Clark's action against Appellees was barred by the statute of
limitations. Id.
This timely appeal followed on September 5, 2018, and all Pa.R.A.P.
1925 requirements have been met.
6 As indicated supra, although Monica Clark did not file her own action against
Decedent's Estate until July 13, 2010, the Clarks averred Monica Clark was
present when David Clark met with Attorney Stover in 2008. It is unnecessary
for us to determine precisely whether Monica Clark formally retained Attorney
Stover in 2008 or 2010.
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On appeal, the Clarks argue the trial court erred in granting summary
judgment in favor of Appellees on the basis the Clarks' action was barred by
the statute of limitations!
The principles we apply in reviewing a summary judgment order are
well -settled.
[S]ummary judgment isonly appropriate in cases where there are
no genuine issues of material fact and the moving party is entitled
to judgment as a matter of law. Pa.R.C.P. 1035.2(1). When
considering a motion for summary judgment, the trial court must
take all facts of record and reasonable inferences therefrom in a
light most favorable to the non-moving party and must resolve all
doubts as to the existence of a genuine issue of material fact
against the moving party. Yenchi v. Ameriprise Fin., Inc., 639
Pa. 618, 161 A.3d 811, 818 (2017) (citing Toy v. Metropolitan
Life Ins. Co., 593 Pa. 20, 928 A.2d 186, 195 (2007)). An
appellate court may reverse a grant of summary judgment if there
has been an error of law or an abuse of discretion. Fine [v.
Checcio, 582 Pa. 253,] 870 A.2d [850,] 857 n.3 [(2005)].
Because the claim regarding whether there are genuine issues of
material fact is a question of law, our standard of review is de
novo and our scope of review is plenary. Id.As indicated supra, the trial court concluded all claims remaining in the
Clarks' complaint were barred by the statute of limitations. However, on
appeal, the Clarks have developed an argument related to their legal
malpractice negligence, as well as David Clark's legal malpractice breach of
contract claim, only. That is, they have developed no argument as to the
dismissal of David Clark's third -party beneficiary claim upon the grant of
summary judgment. Further, they have developed no argument as to the
dismissal of Monica Clark's legal malpractice breach of contract and thirty -
party beneficiary claim upon the grant of Appellees' preliminary objections.
While the Clarks provide argument with regard thereto in their reply brief for
the first time, a reply brief cannot be a vehicle to argue issues not initially
raised and developed in the appellant's original brief. Commonwealth v.
Fahy, 558 Pa. 313, 737 A.2d 214 (1999). We shall, accordingly, confine our
analysis.
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Nicolaou v. Martin, Pa. , 195 A.3d 880, 891-92 (2018). In addition,
to the extent this Court must resolve a question of law, we review the trial
court's grant of summary judgment in the context of the entire record.
Yenchi, supra.
Further, "[s]ummary judgment may properly be entered in favor of a
defendant when the plaintiff's cause of action is barred by the statute of
limitations." Brooks v. Sagovia, 636 A.2d 1201, 1202 (Pa.Super. 1994)
(citation omitted). As this Court has held:
Once the prescribed statutory period for commencing a
cause of action has expired, the complaining party is barred from
bringing suit. Lack of knowledge, mistake or misunderstanding
does not toll the running of the statute of limitations. The defense
of statute of limitations is not a technical defense but substantial
and meritorious. Mere delay, extended to the limit prescribed, is
itself a conclusive bar. There is a strong policy in Pennsylvania
courts favoring the strict application of statutes of limitation. It is
the duty of a party asserting a cause of action to use all reasonable
diligence to be properly informed of the facts and circumstances
upon which a potential right of recovery is based and to institute
suit within the prescribed statutory period.
Booher v. Olczak, 797 A.2d 342, 345 (Pa.Super. 2002) (internal citations
and quotations omitted). "Thus, the statute of limitations begins to run as
soon as the right to institute and maintain a suit arises....Once the prescribed
statutory period has expired, the party is barred from bringing suit unless it
is established that an exception to the general rule applies which acts to toll
the running of the statute." Pocono International Raceway, Inc. v.
Pocono Produce, Inc., 503 Pa. 80, 468 A.2d 468, 471 (1983) (citations
omitted). See Fine, supra (holding the statute of limitations period begins
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running even if the plaintiff lacked knowledge or misunderstood the factual or
legal basis of the claim). Whether an action was timely filed within the
limitations period is a matter of law for the court to determine. See id.
[A]n action for legal malpractice may be brought in either
contract or tort....[I]t is undisputed that the two-year limitations
period applies to the negligence claim and the four-year
limitations period applies to the breach of contract claim. 42
Pa.C.S.[A.] §§ 5524(3), 5525.
Wachovia Bank, N.A. v. Ferretti, 935 A.2d 565, 570-71 (Pa.Super. 2007)
(citations onnitted).8
Initially, we must determine when the statute of limitations in this legal
malpractice action began to accrue. "[T]he occurrence rule is used to
determine when the statute of limitations begins to run in a legal malpractice
action. Under the occurrence rule, the statutory period commences upon the
happening of the alleged breach of duty." Communications Network
International, Ltd. v. Mullineaux, 187 A.3d 951, 960-61 (Pa.Super. 2018)
(quotation and bold omitted). That is, the "trigger" for the statute of
8 We note that "[a] claim of legal malpractice [based on negligence] requires
that the plaintiff plead the following three elements: employment of the
attorney or other basis for a duty; the failure of the attorney to exercise
ordinary skill and knowledge; and the attorney's negligence was the proximate
cause of damage to the plaintiff." 412 N. Front St. Assocs., LP v. Spector
Gadon & Rosen, P.C., 151 A.3d 646, 657 (Pa.Super. 2016) (citations
omitted). A legal malpractice claim based on breach of contract requires the
plaintiff establish: (1) the existence of a contract, including its essential terms,
(2) a breach of a duty imposed by the contract, and (3) resultant damages.
Core States Bank v. Cutillo, 723 A.2d 1053, 1058 (Pa.Super. 1999).
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limitations in a legal malpractice action is not the realization of actual loss but
the occurrence of a breach of duty. Wachovia Bank, N.A., 935 A.2d at 572.
In the case sub judice, the Clarks have identified various alleged
breaches of duty committed by Attorney Stover during the litigation of David
Clark's lawsuit against Decedent's Estate, including: the failure to procure
competent expert testimony to address the impropriety in the drafting of the
Will and Decedent's lack of capacity, the failure to offer factual
testimony/evidence that would have buttressed the claims for lack of capacity
and undue influence,9 and the failure to conduct discovery and an evaluation
of the Co -Executors' financial activities to rebut the claim that Leslie A.
McDermott did not receive a substantial economic benefit from the WHO° See
The Clarks' Brief at 32, 35. Further, as to Monica Clark, they aver Attorney
9 For instance, the Clarks assert Decedent left messages on the Clarks'
telephones from late 2007 to early 2008; however, Attorney Stover did not
introduce the messages in the underlying Will contest case. The Clarks' Brief
at 16-18. Further, they assert Attorney Stover should have deposed various
individuals, including Thomas Miller, Charles Lightner, Pamela Filson, Karen
Ponish, Charles Bierbach, and Daniel Varner, who would have provided
information rebutting the idea that Decedent was of sound mind when he
executed the Will. Id. at 18-20.
10The Clarks assert Attorney Stover breached his duty by failing to request a
detailed accounting of the Estate, which would have revealed Leslie A.
McDermott was stealing assets from the Estate. The Clarks' Brief at 21-24.
They contend this would have discredited Leslie A. McDermott's testimony in
the underlying Will contest that she did not receive a substantial benefit from
Decedent's Estate. Id.
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Stover breached his duty by improperly advancing the theory that Monica
Clark should pursue her own conversion lawsuit against Decedent's Estate
and, thus, failing to join her as a defendant in the lawsuit brought by David
Clark against Decedent's Estate.11 See id.
While the exact dates of Attorney Stover's alleged breaches have not
been identified by the Clarks, it is evident that the alleged breaches of duty
occurred in this case no later than November 10, 2009, when Judge Milliron
entered his order dismissing David Clark's claims against Decedent's Estate in
the underlying will contest.12 See Robbins & Sevento Orthopedic
Surgeons, Inc. v. Geisenberger, 674 A.2d 244 (Pa.Super. 1996) (holding
the statute of limitations for legal malpractice for alleged negligence in
preparing and filing employee pension plan with Internal Revenue Service
("IRS") accrued no later than the date when the IRS rendered its decision that
11 As indicated supra, the trial court provided an alternate reason for granting
summary judgment in favor of Appellees and against Monica Clark as to her
legal malpractice negligence claim; namely, that she did not establish a prima
facie case since the statute of limitations on her conversion suit against
Decedent's Estate expired, at the latest, in February of 2007, which was prior
to her retaining of Attorney Stover in 2008. However, as discussed supra, the
Clarks did not properly challenge this portion of the trial court's ruling on
appeal.
12 We acknowledge that David Clark filed an appeal to this Court, as well as a
petition for allowance of appeal with our Supreme Court, which was denied on
June 8, 2012. However, in Wachovia Bank, N.A., 935 A.2d at 574, this
Court "rejected the plaintiff's argument that the pendency or potential
pendency of an appeal in the underlying case would toll the statute of
limitations in [a] legal malpractice action."
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deductions for the pension plan were disallowed). Thus, absent the
applicability of any exceptions, the statute of limitations expired two years
later (approximately November 10, 2011) for the Clarks' legal malpractice tort
claim and four years later (approximately November 10, 2013) for David
Clark's legal malpractice breach of contract claim. However, the Clarks did
not institute the instant action until October 1, 2015, when they filed their
praecipe for a writ of summons. See Pa.R.Civ.P. 1007 (indicating an action
may be commenced by the filing of a praecipe for a writ of summons with the
prothonotary). Accordingly, their action is barred by the statute of limitations
absent an applicable exception.
The Clarks argue they have set forth a genuine issue of material fact as
to the applicability of the equitable discovery rule, which is an exception to
the occurrence rule. See Communications Network International, Ltd.,
supra.
The discovery rule is an exception to the requirement that a
complaining party must file suit within the statutory period. The
discovery rule provides that where the existence of the injury is
not known to the complaining party and such knowledge cannot
reasonably be ascertained within the prescribed statutory period,
the limitations period does not begin to run until the discovery of
the injury is reasonably possible. The statute begins to run in
such instances when the injured party possesses sufficient critical
facts to put him on notice that a wrong has been committed and
that he need investigate to determine whether he is entitled to
redress. The party seeking to invoke the discovery rule bears the
burden of establishing the inability to know that he or she has
been injured by the act of another despite the exercise of
reasonable diligence.
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Id. at 961 (quotation and bold omitted). See Nicolaou, supra, 195 A.3d at
892 (holding the discovery rule is tied to actual or constructive knowledge of
at least some form of harm and of a factual cause linked to another's conduct,
without the necessity of notice of the full extent of the injury, the fact of actual
negligence, or the precise cause); Wachovia Bank, N.A., 935 A.2d at 572("[An exception to the occurrence rule] is the equitable discovery rule which
will be applied when the injured person is unable, despite the exercise of due
diligence, to know of the injury or its cause. Lack of knowledge, mistake or
understanding, will not toll the running of the statute.") (quotation marks and
quotation omitted)). Under the standard of reasonable diligence, "a plaintiff
is required to establish that he exhibited those qualities of attention,
knowledge, intelligence and judgment which society requires of its members
for the protection of their own interests and the interests of others."
Nicalaou, supra, 195 A.3d at 893-94. "Accordingly, the statute of limitations
in a legal malpractice claim begins to run when the attorney breaches his or
her duty, and is tolled only when the client, despite the exercise of due
diligence, cannot discover the injury or its cause." Communications
Network International, Ltd., 187 A.3d at 961 (quotation and bold omitted).
It is noteworthy that due diligence is measured by an objective-rather
than a subjective-test. Gleason v. Borough of Moosic, 609 Pa. 353,15
A.3d 479,485-86 (2011) (quotation omitted). Because due diligence involves
a factual inquiry, it is normally a question for the jury. Id. However, where
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reasonable minds would not differ on whether a party has exercised due
diligence, a court may determine that the discovery rule does not apply as a
matter of law.13 Id. See Wilson v. El-Daief, 600 Pa. 161, 964 A.2d 354,
361-62 (2009) (holding the applicability of the discovery rule may be resolved
"at the summary judgment stage where reasonable minds could not differ on
the subject") (quotation marks and quotations omitted)); Cochran v. GAF
Corp., 542 Pa. 210, 216, 666 A.2d 245, 248 (1995) ("[Me have not hesitated
to find as a matter of law that a party has not used reasonable diligence in
13 The Clarks contend the Supreme Court's holding in Nicolaou, supra,
"clarified" that whether the plaintiff met the discovery rule is "a jury question."
The Clark's Brief at 34. Further, as to this issue, in a Post -Submission
Communication filed with this Court on June 12, 2019, the Clarks ask us to
take note of Rice v. Diocese of Altoona -Johnstown, A.2d , 2019
WL 2427919 (Pa.Super. filed 6/11/19), which applied Nicolaou.
Contrary to the Clarks' suggestion, neither Nicolaou nor Rice establish
a per se rule that whether the plaintiff met the discovery rule is always a
question for the jury. In Nicolaou, which involved allegations of medical
malpractice in failing to treat and diagnose the plaintiff's Lyme disease, the
Supreme Court reiterated that the determination of whether a plaintiff
exercised "reasonable diligence" relevant to the application of the discovery
rule is "generally" a question for the jury; nevertheless, the Supreme Court
held "courts may resolve the matter at the summary judgment stage where
reasonable minds could not differ on the subject." Nicolaou, supra, 195 A.3d
at 894 (quotation and quotation marks omitted). The Supreme Court then
concluded in Nicolaou that, since there was a genuine issue of material fact
and reasonable minds could differ as to whether the plaintiff exercised
reasonable diligence, Pennsylvania's general rule (that the issue should be
submitted to the jury) applied in the case. Id.
Moreover, in Rice, this Court concluded reasonable minds could differ
as to whether a plaintiff exercised due diligence in a case involving alleged
sexual molestation by a priest, as well as the alleged cover-up by the Diocese,
and thus, applying Nicolaou, this Court held the issue was for the jury to
decide.
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ascertaining the cause of an injury thus barring the party from asserting their
claim under the discovery rule."). The party asserting the discovery rule bears
the burden of proof. Id.
Here, viewing the record in the light most favorable to the Clarks, there
is no genuine issue of material fact that their legal malpractice claims were
reasonably discoverable when Judge Milliron rendered his decision in the
underlying Will contest case. At this point, they possessed "sufficient critical
facts to put [them] on notice that a wrong [by Attorney Stover]" may have
been committed. Communications Network International, Ltd., 187 A.3d
at 961 (quotation omitted). Nothing in the record suggests that the Clarks
were in any way hindered from immediately assessing Attorney Stover's
performance.
As the trial court concluded, David Clark testified during his deposition
that he was actually aware of Judge Milliron's decision "within a week of
November 10th, 2009." David Clark's Deposition, dated 3/15/18, at 128. The
Clarks' lack of understanding, lack of knowledge, or mistake about the
meaning of Judge Milliron's decision (or Attorney Stover's action/inaction)
does not toll the running of the statute. See Wachovia Bank, N.A., 935
A.2d at 572. Further, inasmuch as reasonable minds would not differ on
whether the Clarks exercised due diligence, and there is no basis for a jury to
conclude that the limitations period was tolled by operation of the discovery
rule, it was unnecessary for the issue to be submitted to a jury, and the trial
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court properly found the discovery rule does not apply as a matter of law.14
Gleason, supra.This does not end our inquiry as the Clarks further argue they have set
forth a genuine issue of material fact as to whether the statute of limitations
should be tolled due to Appellees' fraudulent concealment of facts from them.
The statute of limitations may also be tolled if a defendant fraudulently
conceals facts from the plaintiff. See Fine, supra. As our Supreme Court
has held:
14 As indicated supra, one of the breaches of duty complained of by the Clarks
is that, during discovery in the underlying Will contest case, Attorney Stover
failed to request a detailed accounting of the Estate, which would have
allegedly revealed Leslie A. McDermott was stealing assets from the Estate,
which in turn would have discredited Leslie A. McDermott's testimony in the
underlying Will contest case. The Clarks' Brief at 21-24, 35-36. The Clarks
contend they discovered Leslie A. McDermott was stealing from the Estate
during various periods, including from July 2008 to November 2009, when the
R.A.C.E. Fund filed a lawsuit against Leslie A. McDermott on March 10, 2015.
See id. at 22; The Clarks' Answer in Opposition to Summary Judgment, filed
6/15/18. Accordingly, under the equitable discovery rule, the Clarks suggest
the statute of limitations was tolled until March 10, 2015, when the R.A.C.E.
Fund filed its lawsuit.
We disagree with the Clarks' argument. Reasonable minds would not
differ in concluding that the Clarks could have reasonably ascertained, with
due diligence, whether Attorney Stover requested an accounting of the Estate
during discovery in the underlying Will contest case. Specifically, as of
November 10, 2009, when discovery was closed and Judge Milliron issued his
decision in the underlying Will contest case, the Clarks were put on notice that
they should investigate to determine whether Attorney Stover breached his
duty in this regard. See Gleason, supra. The Clarks' lack of knowledge or
understanding of the need for a detailed accounting does not toll the running
of the statute of limitations. See Wachovia Bank, N.A., supra.
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The doctrine [of fraudulent concealment] is based on a
theory of estoppel, and provides that the defendant may not
invoke the statute of limitations, if through fraud or concealment,
he causes the plaintiff to relax his vigilance or deviate from his
right of inquiry into the facts. The doctrine does not require fraud
in the strictest sense encompassing an intent to deceive, but
rather, fraud in the broadest sense, which includes an
unintentional deception. The plaintiff has the burden of proving
fraudulent concealment by clear, precise, and convincing
evidence.
***
[T]he standard of reasonable diligence, which is applied to
the running of the statute of limitations when tolled under the
discovery rule, also...applies when tolling takes place under the
doctrine of fraudulent concealment. This is, we believe, the
standard that will serve one of the overarching tenets in this area
of our jurisprudence-the responsibility of a party who seeks to
assert a cause of action against another to be reasonably diligent
in informing himself of the facts upon which his recovery may be
based. Moreover, because the doctrine captures even
unintentional conduct on a defendant's part and the standard of
reasonable diligence requires from a party only that knowledge
which is reasonably attained under the circumstances, we do not
believe that deviation from that standard to a higher threshold of
knowledge is warranted. Thus, we conclude that a statute of
limitations that is tolled by virtue of fraudulent concealment
begins to run when the injured party knows or reasonably should
know of his injury and its cause.
Fine, supra, 870 A.2d at 860-61 (citations omitted).
Here, the Clarks suggest that Attorney Stover fraudulently concealed
from them the fact he did not request a detailed accounting of Decedent's
Estate in the underlying Will contest. In this vein, they point to the following
letter, which Attorney Stover sent to them on May 4, 2015, which was well
after the expiration of the statute of limitations, advising them of the
following:
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I understand from a very good source that a Civil Action has been
or is about to be filed against Leslie McDermott and Edson Craft
(and maybe Larry Newton) on account of Ms. McDermott co -
mingling and stealing the Estate assets for her own benefit.
Apparently there is very little in the way of assets remaining in
the Estate.
The Clarks' Brief at 35.
The Clarks aver that upon receipt of this letter, in which Attorney Stover
was apparently referring to the R.A.C.E. Fund's lawsuit, the Clarks "finally
knew that there was a major piece of their case that was not included by
[Attorney] Stover." Id. They argue Attorney Stover's letter amounts to an
admission of negligence, as well as fraudulent concealment, as to his failure
to request a detailed accounting of the Estate.
Initially, we note the facts underlying the Clarks' claim are not in
dispute, i.e., the Clarks rely on the letter from Attorney Stover for the basis
of their fraudulent concealment claim. We hold the content of the letter, as a
matter of law, does not establish fraudulent concealment. See id. That is,
the letter provides no evidence of an unintentional or intentional act of
concealment or that Attorney Stover somehow, through fraud or concealment,
caused the Clarks to relax their vigilance to inquire about the breaches
allegedly committed by him during the underlying litigation. See id.
Finally, the Clarks suggest that, through fraud or concealment, Attorney
Stover made David Clark relax his vigilance as to Attorney Stover's negligence
in the underlying Will contest case by assuring David Clark that he believed
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Judge Milliron's decision in the underlying Will contest case was incorrect, and
thus, David Clark could win on appeal. See The Clarks' Brief at 41.
During his deposition, David Clark admitted that, prior to appealing, he
believed "[Attorney Stover] missed a bunch of the mistakes the judge made.
And then the judge missed half the mistakes that [Attorney Stover] had
made." David Clark's Deposition, dated 3/15/18, at 56.15 In any event,
viewing the evidence in the light most favorable to the Clarks, nothing in the
record suggests the Clarks were in any way hindered from immediately
assessing Attorney Stover's performance. Fine, supra.
In conclusion, we conclude there is no genuine issue of material fact,
and there is no error of law in the trial court's determination that the Clarks'
legal malpractice claims are barred by the statute of limitations.
For all of the foregoing reasons, we affirm.
Affirmed; Application to Strike is Denied; Application for Substitution of
a Party is Granted.
15 We note the Clarks request that this Court adopt the "Continuous
Representation Rule" under which the statute of limitations would not begin
to run until the date on which the Clarks terminated Attorney Stover. This
Court has previously rejected this argument, Glenbrook Leasing Co. v.
Beausang, 839 A.2d 437 (Pa.Super. 2003), and we are bound by the holding
under the doctrine of stare decisis. Eckman v. Erie Ins. Exchange, 21 A.3d
1203, 1209 (Pa.Super. 2011) ("This Court is bound by existing precedent
under the doctrine of stare decisis.").
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Judgment Entered.
J seph D. Seletyn,
Prothonotary
Date: 8/1/2019
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