Calkins, M. v. Butz, E. ( 2017 )

J-S79003-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MILDRED K. CALKINS, ADMINISTRATRIX IN THE SUPERIOR COURT OF
OF THE ESTATE OF ANNA C. KASYCH, PENNSYLVANIA
DECEASED
Appellant
v.
EDWARD H. BUTZ, ESQUIRE, LESAVOY
BUTZ & SEITZ, LLC, ST. LUKE’S HEALTH
NETWORK, INC., ST. LUKE’S HOSPITAL –
ALLENTOWN CAMPUS
Appellees No. 442 EDA 2016
Appeal from the Order Entered January 19, 2016
In the Court of Common Pleas of Lehigh County
Civil Division at No(s): 2015-C-0809
BEFORE: GANTMAN, P.J., MOULTON, J., and MUSMANNO, J.
MEMORANDUM BY GANTMAN, P.J.: FILED JANUARY 23, 2017
Appellant, Mildred K. Calkins, Administratrix of the Estate of Anna C.
Kasych, Deceased, appeals from the order entered in the Lehigh County
Court of Common Pleas, which granted judgment on the pleadings in favor
of Appellees Edward H. Butz, Esquire, and Lesavoy Butz & Seitz, LLC
(“Attorney Butz and LB&S”). We affirm.
The relevant facts and procedural history of this case are as follows.
Appellant is a sibling of Anna Kasych and Charles Kasych, Jr., who are
deceased. The Kasychs initially owned eight properties as joint tenants in
Whitehall Township (“Whitehall Properties”), which were valued at millions of
dollars. In October 2008, the Kasychs met with the vice president of the St.
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Luke’s Hospital Development Office, to discuss the possibility of making a
testamentary gift of the Whitehall Properties to St. Luke’s Hospital (“St.
Luke’s”). At the Kasychs’ request, the general counsel for St. Luke’s
recommended two accountants and two attorneys for estate planning
services, one of whom was Attorney Butz. At that time, Attorney Butz was a
partner at the law firm of LB&S. Bernard Lesavoy also was a partner at
LB&S. Attorney Lesavoy and LB&S had represented St. Luke’s in the past.
Attorney Lesavoy also received a community involvement award from St.
Luke’s in 2002 and was an honorary co-chair at the hospital’s “Dinner by
Starlight” event in 2005.
Shortly after the meeting with the St. Luke’s Development Office, the
Kasychs engaged the services of Attorney Butz and LB&S in connection with
the planned bequests to St. Luke’s. The terms of Attorney Butz and LB&S’
representation was not memorialized in writing. In December 2008,
Attorney Butz drafted separate wills for the Kasychs devising their property
interests, including the Whitehall Properties, to St. Luke’s. As part of the
estate plan, Attorney Butz also drafted new deeds for each of the Whitehall
Properties, which changed the Kasychs’ ownership of the properties from
joint tenancies to tenancies in common. In a letter to the Kasychs dated
December 4, 2008, Attorney Butz explained: “Finally, I have enclosed a
document converting your real estate ownership from joint tenancies with
right of survivorship to tenancies in common, which allows you to separately
leave one-half of your properties to St. Luke’s.” (Appellant’s Complaint, filed
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4/15/15, at Exhibit C; R.R. at 43a). This change comported with the
Kasychs’ desire, as expressed in their wills, for their estates to qualify for the
federal estate tax charitable deduction. The Kasychs signed the new deeds
on February 6, 2009, and they were recorded on March 3, 2009. The
Kasychs executed the finalized wills on August 12, 2009.1 Mr. Kasych died
on September 8, 2010. On February 17, 2011, Attorney Lesavoy was
appointed to the Board of Governors of St. Luke’s Hospital—Allentown
Campus. Ms. Kasych was executrix of Mr. Kasych’s estate and administered
his estate for three years until her death. Mr. Kasych’s will was probated
and his one-half interest in the Whitehall Properties passed directly to St.
Luke’s. During that time, Ms. Kasych also defended Mr. Kasych’s estate
against claims brought by Appellant, and contacted Attorney Butz to revise
her own estate plan. In an engagement letter to Ms. Kasych dated February
12, 2013, Attorney Butz stated:
I have advised you that my firm has represented St.
Luke’s Hospital in a variety of matters. You may also
recall that my youngest son was born at St. Luke’s
Hospital, Allentown. Therefore, you should know that I
have a high regard for St. Luke’s. Because you are free to
leave your estate to any person or entity you wish,
however, I do not believe that the above facts have any
bearing on my representing you in connection with your
estate plan. On the other hand, I do not want to be
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1
Both wills contained a provision requesting that the personal representative
use all reasonable efforts to prevent the sale or transfer of any estate
property to Appellant, among several other individuals and entities.
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involved in any matter adverse to St. Luke’s. I hope you
will find this satisfactory. If not, please let me know.
(Appellant’s Complaint at Exhibit D; R.R. at 45a-46a). Ms. Kasych
subsequently engaged other counsel to revise/revoke her will. Ms. Kasych
died on December 21, 2013. No testamentary writing was admitted to
probate, and Appellant was appointed administratrix of Ms. Kasych’s estate.
On March 16, 2015, Appellant initiated the current action by filing a
praecipe for a writ of summons in her capacity as administratrix of Ms.
Kasych’s estate. Appellant filed a complaint on April 15, 2015, which
included counts of breach of contract, malpractice/professional negligence,
and breach of fiduciary duty against Attorney Butz and LB&S.2 Appellant
also brought counts of unjust enrichment and equitable reformation against
St. Luke’s Health Network, Inc. and St. Luke’s Hospital—Allentown Campus
(“St. Luke Defendants”). The St. Luke Defendants filed preliminary
objections on May 8, 2015. On May 27, 2015, Appellant filed preliminary
objections to the St. Luke Defendants’ preliminary objections. Attorney Butz
and LB&S filed an answer and new matter to the complaint on June 12,
2015. On June 17, 2015, the St. Luke Defendants filed amended
preliminary objections to Appellant’s complaint.
On September 4, 2015, Attorney Butz and LB&S filed a motion for
judgment on the pleadings, arguing Appellant’s claims against them were
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2
Appellant filed certificates of merit in support of her complaint.
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barred by the relevant statutes of limitations. The court sustained the St.
Luke Defendants’ preliminary objections on September 24, 2015, which
resulted in dismissal of all claims against the St. Luke Defendants. 3 The
court granted Attorney Butz and LB&S’ motion for judgment on the
pleadings on January 19, 2016. Appellant filed a timely notice of appeal on
February 2, 2016. The court ordered Appellant to file a concise statement of
errors complained of on appeal per Pa.R.A.P. 1925(b), and Appellant timely
complied.
Appellant raises the following issues for our review:
WHETHER THE TRIAL COURT ERRED IN DISMISSING THE
ENTIRE COMPLAINT WITHOUT ALSO ADDRESSING THE
APPLICABLE FOUR-YEAR STATUTE OF LIMITATIONS TO
[APPELLANT’S] COUNT I FOR BREACH OF CONTRACT,
WHICH WAS TIMELY FILED.
WHETHER THE TRIAL COURT ERRED IN DISMISSING THE
COMPLAINT AS A MATTER OF LAW AND GRANTING
[ATTORNEY BUTZ AND LB&S’] MOTION FOR JUDGMENT ON
THE PLEADINGS UNDER THE STATUTE OF LIMITATIONS
WHERE THE DISCOVERY RULE AND/OR FRAUDULENT
CONCEALMENT DOCTRINES TOLLED THE APPLICABLE
LIMITATIONS PERIODS FOR [APPELLANT’S] TORT AND
CONTRACT CLAIMS AND THE FACTUAL ISSUES IN
DISPUTE PRECLUDED A RULING ON THIS ISSUE AS A
MATTER OF LAW AT THE PLEADINGS STAGE.
(Appellant’s Brief at 4).
Appellate review of an order granting a motion for judgment on the
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3
The order sustaining the St. Luke Defendants’ preliminary objections is not
at issue in this appeal.
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pleadings implicates the following principles:
Entry of judgment on the pleadings is permitted under
Pennsylvania Rule of Civil Procedure 1034, which provides
that “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.
Southwestern Energy Production Co. v. Forest Resources, LLC, 83
A.3d 177, 185 (Pa.Super. 2013), appeal denied, 626 Pa. 691, 96 A.3d 1029(2014).
“[W]hether the statute of limitations has run on a claim is generally a
question of law for the trial [court].” Wilson v. Transp. Ins. Co., 889 A.2d
563, 570 (Pa.Super. 2005). “Which statute of limitations applies to a cause
of action is also a matter of law for the court to determine.” Id.“Additionally, the interpretation and ‘application of a statute is a question of
law that compels plenary review to determine whether the court committed
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an error of law.’” Id.Generally, “the statute of limitations begins to run at the time when a
complete cause or right of action accrues or arises, which occurs as soon as
the right to institute and maintain a suit arises.” Centre Concrete Co. v.
AGI, Inc., 522 Pa. 27, 31, 559 A.2d 516, 518 (1989). “The party asserting
the cause of action has the affirmative duty to use all reasonable diligence to
determine the facts and circumstances of the claim and to institute suit
within the prescribed period.” Devine v. Hutt, 863 A.2d 1160, 1167
(Pa.Super. 2004).
Statutes of limitations are vital to the welfare of society
and are favored in the law. They are found and approved
in all systems of enlightened jurisprudence. They promote
repose by giving security and stability to human affairs.
An important public policy lies at their foundation. They
stimulate to activity and punish negligence. While time is
constantly destroying the evidence of rights, they supply
[the place of evidence lost or impaired by lapse of time, by
raising a] presumption which renders proof unnecessary.
Mere delay, extended to the limit prescribed, is itself a
conclusive bar. The bane and antidote go together.
Id. Nevertheless,
The discovery rule is a judicially created device which tolls
the running of the applicable statute of limitations until
that point when the plaintiff knows or reasonably should
know: (1) that he has been injured, and (2) that his injury
has been caused by another party’s conduct. The
limitations period begins to run 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.
Weik v. Estate of Brown, 794 A.2d 907, 909 (Pa.Super. 2002), appeal
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denied, 572 Pa. 709, 813 A.2d 844 (2002). Whether the prescribed statute
of limitations period has expired is not relevant to whether “the discovery
rule applies to toll the statute of limitations in any case where a party
neither knows nor reasonably should have known of his injury and its cause
at the time his right to institute suit arises.” Fine v. Checcio, 582 Pa. 253,
269, 870 A.2d 850, 859-60 (2005). Instead,
[W]hen a court is presented with the assertion of the
discovery rule[’]s application, it must address the ability of
the damaged party, exercising reasonable diligence, to
ascertain that he has been injured and by what cause.
Since this question involves a factual determination as to
whether a party was able, in the exercise of reasonable
diligence, to know of his injury and its cause, ordinarily, a
jury is to decide it. Where, however, reasonable minds
would not differ in finding that a party knew or should
have known on the exercise of reasonable diligence of his
injury and its cause, the court determines that the
discovery rule does not apply as a matter of law.
Id. at 267-68, 870 A.2d at 858-59 (internal citations omitted). See also
Fiorentino v. Rapoport, 693 A.2d 208, 216, 219 (Pa.Super. 1997), appeal
denied, 549 Pa. 716, 701 A.2d 577 (1997) (stating: “Evidence which
demonstrates that a plaintiff has suffered the loss of property rights under a
contract will suffice to establish ‘actual injury’ or ‘harm’ in a legal malpractice
action”; “In Pennsylvania, the occurrence rule is used to determine when the
statute of limitations begins to run. Under the Pennsylvania occurrence rule,
the statutory period commences when the harm is suffered, or if
appropriate, at the time an alleged malpractice is discovered”; whether
statute has run on claim is usually question of law for trial judge, i.e., where
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facts demonstrate reasonable minds could not differ, court can determine
limitations period as matter of law).
In issue one, Appellant argues her complaint made out a breach of
contract claim by alleging Attorney Butz and LB&S failed to follow Ms.
Kasych’s instruction to make a revocable bequest to St. Luke’s. Appellant
asserts Attorney Butz and LB&S took an additional unrequested step of
converting the Whitehall Properties from joint tenancies to tenancies in
common, eliminating Appellant’s “power of appointment” over the
“properties as a whole.” Appellant contends Attorney Butz and LB&S
deviated from the general professional practice of drafting a will as
requested by the client, with an intent to benefit St. Luke’s. Appellant
maintains the four-year statute of limitations should apply to her breach of
contract claim, as opposed to the two-year statute of limitations applicable
to claims of professional negligence.
Appellant further argues the court misapplied the discovery rule.
Appellant avers it is unknown whether Attorney Butz and LB&S advised Ms.
Kasych that her “rights in the whole of the real properties” were
extinguished when the properties were converted to tenancies in common.
Appellant claims the discovery rule tolled the statute of limitations even if
Ms. Kasych knew by the time of Mr. Kasych’s death in 2010, that Mr.
Kasych’s one-half interest in the Whitehall Properties would pass directly to
St. Luke’s. Appellant asserts Ms. Kasych still had no reason to inquire into
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the legal cause of her harm until she received the February 2013 letter from
Attorney Butz, disclosing a potential conflict of interest. Appellant concludes
the court erred when it determined Appellant’s breach of contract claim was
barred by the statute of limitations. We disagree.
Under Pennsylvania law, “[a]n action may be commenced by filing with
the prothonotary (1) a praecipe for a writ of summons, or (2) a complaint.”
Pa.R.C.P. 1007. Section 5525 of the Judicial Code sets forth a two-year
statute of limitations for professional negligence actions:
§ 5524. Two year limitation
The following actions and proceedings must be commenced
within two years:
* * *
(7) Any other action or proceeding to recover
damages for injury to person or property which is
founded on negligent, intentional, or otherwise tortious
conduct or any other action or proceeding sounding in
trespass, including deceit or fraud, except an action or
proceeding subject to another limitation specified in this
subchapter.
42 Pa.C.S.A. § 5524(7). Section 5525 of the Judicial Code sets forth a four-
year statute of limitations for breach of contract actions:
§ 5525. Four year limitation
(a) General rule.—Except as provided for in subsection
(b), the following actions and proceedings must be
commenced within four years:
* * *
(3) An action upon an express contract not founded
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upon an instrument in writing.
* * *
(8) An action upon a contract, obligation or liability
founded upon a writing not specified in paragraph (7),
under seal or otherwise, except an action subject to
another limitation specified in this subchapter.
42 Pa.C.S.A. § 5525(a)(3), (8). “In Pennsylvania, an individual who has
taken part in an attorney-client relationship may sue his attorney for
malpractice under either a trespass or assumpsit theory, each of which
requires the proof of different elements.” Fiorentino, supra at 212.
For a trespass/professional negligence claim, the plaintiff must
establish three elements: (1) the employment of the attorney or other basis
for duty; (2) the failure of the attorney to exercise ordinary skill and
knowledge; and (3) the attorney’s failure to exercise the requisite skill and
knowledge was the proximate cause of damage to the plaintiff. Bailey v.
Tucker, 533 Pa. 237, 246, 621 A.2d 108, 112 (1993). “An attorney will be
deemed ‘negligent’ if he…fails to possess and exercise that degree of
knowledge, skill and care which would normally be exercised by members of
the profession under the same or similar circumstances.” Fiorentino,
supra at 212.
By way of comparison, an assumpsit claim based on
breach of an attorney-client agreement is a contract claim,
and the attorney’s liability must be assessed under the
terms of the contract. [Bailey, supra] at 251, 621 A.2d
at 115. Thus, if the attorney agrees to provide his…best
efforts and fails to do so, an action in assumpsit will
accrue. Id. “[A]n attorney who agrees for a fee to
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represent a client is by implication agreeing to provide that
client with professional services consistent with those
expected of the profession at large.” Id. at 251-52, 621
A.2d at 115.
Id. at 213. As a general rule to succeed in a cause of action for breach of
contract the plaintiff must 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.” Gorski v. Smith, 812 A.2d 683, 693-94
(Pa.Super. 2002), appeal denied, 579 Pa. 692, 856 A.2d 834 (2004)
(holding that post-Bailey, breach of contract claims in context of legal
malpractice are not limited to instances in which attorney failed to follow
specific instruction of client, but also encompass breach of implied promise
by attorney to render legal services in manner consistent with standards of
profession at large).
Instantly, Appellant initiated this action by writ of summons filed on
March 16, 2015. Appellant’s civil complaint contained three counts against
Attorney Butz and LB&S: Count I—Breach of Contract; Count II—
Professional Malpractice; and Count III—Breach of Fiduciary Duty.
Appellant’s breach of contract count stated as follows:
Count I – Breach of Contract
([Appellant] v. Butz and LB&S)
75. [Appellant] hereby incorporates by reference all
other paragraphs of this Complaint as though set forth
fully herein.
76. When Anna [Kasych] engaged [Attorney] Butz and
LB&S she contracted for specific services to effectuate her
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then intent to execute a Will as part of her estate plan
which made a bequest to St. Luke’s.
77. By definition, a bequest is revocable by the testator
during his or her life.
78. [Ms. Kasych’s] contract with [Attorney] Butz and
LB&S for estate planning services was supported by
consideration in that [Ms. Kasych] paid fees for such
services.
79. [Attorney] Butz and LB&S materially breached their
contractual duties to [Ms. Kasych] because they did not
deliver a revocable bequest to St. Luke’s, but instead,
contrary to the parties’ contract, [Attorney] Butz and LB&S
delivered an estate plan containing a bequest with 50% of
the bequest becoming irrevocable upon the death of
[Charles Kasych].
80. As a direct and proximate cause of [Attorney] Butz
and LB&S materially breaching their contract with [Ms.
Kasych] by including an irrevocable gift to St. Luke’s, [Ms.
Kasych], and therefore her Estate, [Appellant] herein,
suffered substantial damages in the form of losing 50% of
the value and income of Whitehall Township Properties.
(Appellant’s Complaint at 17-18; R.R. at 21a-22a). Count I of the complaint
sets forth a cognizable breach of contract claim with an allegation that
Attorney Butz and LB&S failed to abide by an express term of the parties’
agreement, i.e., creation of a revocable bequest to St. Luke’s.4 See Gorski,
supra. Appellant did assert that Attorney Butz and LB&S failed to follow a
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4
That allegation renders moot the parties’ dispute over whether a
malpractice-based breach of contract action requires the plaintiff to allege
her attorney failed to follow a specific client instruction, not just that the
attorney failed to provide services consistent with professional standards.
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specific client instruction.5 Therefore, Appellant stated a claim for breach of
contract subject to the four-year statute of limitations. See 42 Pa.C.S.A. §
5525(a).
In 2009, Attorney Butz finalized the wills and deeds; and the Kasychs
signed the documents. Further, while they were alive, the Kasychs’
individual bequests were revocable. Likewise, Ms. Kasych knew in 2009 that
the Whitehall Properties had been converted from joint tenancies to
tenancies in common. Attorney Butz’ letter to the Kasychs around that time
explained that the deed changes would allow them to devise their one-half
interests in the Whitehall Properties to St. Luke’s separately.
Assuming without deciding that Attorney Butz’ explanation of the
effect of the deed changes was inadequate, no reasonable minds could
disagree that Ms. Kasych knew or should have known of the existence and
cause of her “injury” (loss of her right to survivorship in the Whitehall
Properties) upon or shortly after Mr. Kasych’s death on September 8, 2010.
Ms. Kasych administered the estate of Mr. Kasych, whose one-half interest in
the Whitehall Properties passed directly to St. Luke’s in accordance with his
will. Consequently, Ms. Kasych knew Mr. Kasych’s one-half interest in the
properties was not passing to her via right of survivorship. Therefore, the
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5
Pennsylvania law makes clear the failure to follow a specific client
instruction is no longer a required element of a breach of contract claim in
the context of legal malpractice. See id.
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limitations period on Appellant’s breach of contract claim commenced in
2010 at the latest, upon the death of her sibling. See Fine, supra;Fiorentino, supra.The alleged breach and injury, as stated in Count I of the complaint,
did not depend on Attorney Butz’ purported conflict of interest. The contract
claim is simply that Attorney Butz and LB&S breached their contract with Ms.
Kasych by failing to “deliver a revocable bequest.” No reasonable minds
could disagree that Ms. Kasych knew of the alleged breach and injury in
2009, or 2010 at the latest, and long before she received Attorney Butz’s
February 2013 letter regarding his potential conflict of interest. Thus, the
February 2013 letter did not affect the statute of limitations on Appellant’s
breach of contract claim, given the nature of that claim. When Appellant
filed a praecipe for a writ of summons on March 16, 2015, the breach of
contract claim was barred by the four-year statute of limitations. See 42
Pa.C.S.A. § 5525(a).
In issue two, Appellant argues Ms. Kasych had no knowledge of
Attorney Butz and LB&S’ purported conflict of interest with St. Luke’s until
she received the February 12, 2013 letter from Attorney Butz. Appellant
asserts that letter is what triggered Ms. Kasych’s duty to exercise reasonable
diligence to investigate the legal cause of her harm, i.e., “overreaching” by
Attorney Butz and LB&S to the benefit of St. Luke’s. Appellant maintains the
letter did not, however, disclose Attorney Butz’s actions and their effects on
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Ms. Kasych—only the existence of a previously undisclosed conflict.
Appellant contends that when a reasonable period is added to date of that
letter, her professional negligence and breach of fiduciary duty claims fall
within the applicable two-year statute of limitations. Appellant alternatively
argues her action should relate back to the date she had filed a previous
complaint against the same parties in 2014. Appellant avers her original
complaint made essentially the same allegations against Attorney Butz and
LB&S, but it was dismissed because of a “captioning issue.” Appellant
submits Attorney Butz and LB&S were already on notice of her claims, and
the trial court in the previous case had recommended the filing of a second
complaint. Appellant concludes the court improperly dismissed the 2015
negligence case on statute of limitations grounds. We disagree.
As a preliminary matter, issues raised for the first time on appeal are
generally deemed waived. See Pa.R.A.P. 302; Rivera v. Home Depot, 832
A.2d 487 (Pa.Super. 2003). Further, any issue not included in an appellant’s
Rule 1925(b) statement is waived for purposes of appellate review. Madrid
v. Alpine Mountain Corp., 24 A.3d 380 (Pa.Super. 2011), appeal denied,
615 Pa. 768, 40 A.3d 1237 (2012).
Instantly, Appellant failed to raise her “relation back” argument at any
stage of the trial court proceedings. Appellant also failed to include the
relation-back claim in her Rule 1925(b) statement. The issue appears for
the first time in Appellant’s brief on appeal. Thus, the relation-back claim is
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waived. See id.; Rivera, supra. Furthermore, Appellant cites no
Pennsylvania authority to support her relation-back argument and relies
exclusively on non-binding decisions of federal and other state courts. See
Branham v. Rohm and Haas Co., 19 A.3d 1094 (Pa.Super. 2011), appeal
denied, 615 Pa. 771, 42 A.3d 289 (2012) (stating Superior Court is not
bound by decisions of federal courts, other than United States Supreme
Court, or decisions of other state courts on matters of Pennsylvania law).
Therefore, Appellant failed to preserve her “relation back” theory.
Moreover, Appellant had two years under Section 5524 to prosecute
her claims of professional negligence and breach of fiduciary duty. See also
Weston v Northampton Personal Care, Inc., 62 A.3d 947 (Pa.Super.
2013), appeal denied, 622 Pa. 752, 79 A.3d 1099 (2013) (stating two-year
statute of limitations applies to cause of action for breach of fiduciary duty);
Wachovia Bank, N.A. v. Ferretti, 935 A.2d 565 (Pa.Super. 2007) (stating
two-year statute of limitations applies to claims for professional negligence).
Counts II and III of Appellant’s complaint allege Attorney Butz and
LB&S were negligent and/or breached their fiduciary duty to Ms. Kasych
when they failed to (1) disclose conflicts of interest with St. Luke’s; (2)
obtain Ms. Kasych’s informed consent regarding the conflicts; (3) comply
with Ms. Kasych’s request for a revocable bequest; (4) adequately advise
Ms. Kasych of the difference between a joint tenancy and tenancy in
common or the effect the deed changes would have on her interest in the
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Whitehall Properties. The two-year statute of limitations applies to these
claims. See 42 Pa.C.S.A. § 5524(7); Weston, supra; Wachovia Bank,
N.A., supra. As with the breach of contract claim, Ms. Kasych knew or
should have known no later than her sibling’s death in 2010 of Attorney Butz
and LB&S’ alleged failure to follow Ms. Kasych’s instructions or explain the
consequences of the deed changes. With regard to Appellant’s claims for
professional errors, Appellant’s discovery of Attorney Butz and LB&S’ alleged
conflict of interest is relevant to the statute of limitations analysis. Ms.
Kasych received a letter from Attorney Butz dated February 12, 2013,
disclosing his personal involvement with St. Luke’s and LB&S’ past
representation of the hospital. Therefore, Ms. Kasych was aware of the
alleged conflict of interest no later than February 2013. At that time, Ms.
Kasych knew all the critical facts underlying her negligence and breach of
fiduciary duty claims. See Weik, supra. No reasonable factfinder could
conclude the two-year limitations period applicable to Counts II and III
should have commenced at any time after February 2013. See Fiorentino,
supra. Appellant filed the praecipe for a writ of summons on March 16,
2015, after her claims of professional negligence and breach of fiduciary
duty were time-barred. See 42 Pa.C.S.A. § 5524(7). Thus, the trial court
properly granted Attorney Butz and LB&S’ motion for judgment on the
pleadings. Accordingly, we affirm.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/23/2017
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